Under the Ninth Circuit's “server test,” linking to content is not an infringement because the content is not fixed through that method—it must be stored on the server in order to be fixed. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160–61 (9th Cir. 2007) (finding that the defendant merely provided coded HTML instructions to request the content from the server hosting it); see also Hunley v. Instagram, LLC, 73 F.4th 1062, 1071 (9th Cir. 2023) (“The application of the Server Test depends on the method used for displaying a photo—not the context in which the photo is displayed.”). Thus, the practice of embedding, with no content stored on the alleged infringer's computer, is not copyright infringement. 

Other circuit courts have not yet adopted the server test outright. See Society of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 36–38 (1st Cir. 2012) (considering copyrighted works “embodied or ‘fixed in a tangible medium of expression,' as they were loaded on the [defendant's] computer server and posted to his Website”); Flava Works, Inc. v. Gunter, 689 F.3d 754, 761 (7th Cir. 2012) (determining that providing users with links to content “is not transmitting or communicating” (cleaned up)); IMAPizza, LLC v. At Pizza Ltd., 965 F.3d 871, 877 (D.C. Cir. 2020) (reasoning, in the context of the reproduction right, that the “ephemeral transmission of a picture across the internet” does not constitute a “copy”); Richardson v. Townsquare Media, Inc., No. 25-291-CV, 2026 WL 1097502, at *2 n.2 (2d Cir. Apr. 23, 2026) (commenting on the server test without deciding whether to adopt the server test). 

In considering the server test, the Fifth Circuit focused on transmission rather than fixed storage. Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550, __ F.4th __ (5th Cir. Aug. 27, 2026). The “transmit requirement” is two-fold: first, locating where the transmission originates and, second, determining whether the transmission was permitted. For an embedding webpage that only receives content "transmitted by an authorized source" such as the copyright owner, there is no infringement because of the "volitional conduct" of the copyright owner in allowing the transmission. In looking for a permitted transmission, such as in connection with web-crawling by search engines, "the transmit requirement rests on how the linking technology works: the communication that occurs at a coded level between webpages and servers can empower servers to block certain requests in the same way it can permit displays across pages." 

[O]ur decision leaves open the ways in which the “transmit requirement” approach will develop when applied to true factual circumstances. The interlocutory appeal before us only asks us how to interpret the Copyright Act's display right. Our analysis has rested on two principles: (1) the transmission of the copy is from an authorized source, whereas the embedding webpage only makes a transmission request; and (2) the authorized source could have rejected the request. Yet, there is a lurking question of how this approach would need to transform if a copyright owner had no technological capability to reject the transmission request. We only address the circumstances generally presented in the underlying case here, wherein such permissions appear to be present, and we therefore do not pass on the application of this approach beyond these circumstances. 

* * *
[O]ur decision should not be understood to mean that embedding will always be permissible.

Professor Tushnet noted: "As far as I can tell, the 9th Circuit says that public display is made by the server that transmits the display, while the 5th Circuit says that public display is made by the server that transmits the display." (emphasis in original). 

The Court also addressed whether a URL may be considered to be copyright management information ("CMI") under the DMCA. The Fifth Circuit previously had held that filenames may constitute CMI, but only if they qualify under any of the delineated types of CMI, as provided by the DMCA. Energy Intel. Grp., Inc. v. Kayne Anderson Cap. Advisors, L.P., 948 F.3d 261, 277 (5th Cir. 2020) (finding that nothing in the statute “indicates that a digital file name cannot be CMI”).

While this remains a fact-specific inquiry, the Court held that the "domain name cannot provide a standalone basis for a URL to be CMI," and "when URLs serve a locational purpose only, it is insufficient to cross the threshold from a functional use to one that identifies a copyrighted work."  

To qualify as a link to CMI, the URL would have to connect to an address that displays CMI, such as a page that contained a website's copyright, disclosures, and permissions. Even still, we recognize that the nature of links is that they can change if the pages they locate are altered. Particle's expert testified to this, noting that “[a] URL by definition changes when the resource such as a news article is located on a different server or in a different folder. Whenever the location of any object on the Internet changes, the URL changes, by design, by function, by definition and by logic.”

     However, should the link be more stable, should it connect to a qualifying page, and should it provide notice of the CMI it is linked to, the broad language in Section 1202(c)(7) could provide a basis for URLs to constitute CMI. 

Thus, the Fifth Circuit did not foreclose a URL from being CMI, but noted the following factors would need to be considered: "whether the domain name corresponds with the copyright owner; whether the copyright is over the website as a whole or specific pages; whether the URL is sufficiently stable and not subject to change; and, above all, whether the URLs are clearly being conveyed for the purpose of communicating a copyrighted work." In addition, the Court noted that a CMI violation would further require determining whether any alteration or removal was “intentional” to “remove or alter [the] copyright management information” under 17 U.S.C. § 1202(b) as to violate the DMCA.