Fifth Circuit Rejects Copyright Theory That Would Criminalize Web Links

For the past twenty years, courts have consistently held that directing users to copyrighted content—whether photos, music, or articles—through links or embedded content does not constitute copyright infringement. The liability instead falls on whoever controls the server storing the material, not on the website or person providing the link.

Emmerich Newspapers, a news publisher, attempted to persuade the Fifth Circuit Court of Appeals to overturn this precedent. The company argued that an aggregator site linking to its copyrighted articles was effectively "displaying" them and should face direct liability for infringement. The Electronic Frontier Foundation, along with other public interest groups and trade associations, submitted arguments opposing this position.

The Fifth Circuit sided with the EFF and rejected Emmerich's theory. Although the court declined to rely on the traditional "server test" that has governed copyright liability determinations, it reached the same outcome by examining who bears responsibility for transmitting the content.

Under the court's analysis, directing a user's browser to retrieve and display content from the copyright holder's own server does not constitute transmitting or communicating that content. The court stated: "Although we take different routes to get there, both the server test and the test we announce end up in a similar place: a website cannot transmit a work that it does not have."

The EFF had warned the court that accepting Emmerich's position would transform the routine practice of embedding links into a legally risky endeavor that many websites would avoid, thereby undermining the internet's capacity to facilitate the exchange of information and ideas.

The court's ruling affirms that individuals who link to pictures, video, or articles do not control the transmission of that content to the public. The responsibility lies with whoever manages the server where the linked material resides.

DMCA Claims Also Rejected

Emmerich additionally contended that linking violates the Digital Millennium Copyright Act, claiming that its URLs constitute copyright management information (CMI). The company asserted that when the aggregator displayed Emmerich's articles under its own URL, it tampered with the CMI in violation of the statute.

If this argument had prevailed, ordinary internet users could have faced severe legal exposure for commonplace activities such as using a link shortener, given that statutory penalties can reach $25,000 per violation.

In its brief, the EFF argued that URLs function primarily as locational references and do not necessarily identify a copyrighted work or convey information about the underlying content. The court agreed, concluding that while a URL could theoretically contain CMI, the threshold for establishing such a claim is substantial.

This decision represents a meaningful victory for internet users and the broader ecosystem of online expression, communication, and knowledge sharing. The ruling should resolve this legal question definitively.