Fifth Circuit NewsBreak Copyright Ruling: No Infringement Found

• News aggregator NewsBreak prevailed in a copyright infringement case brought by Emmerich Newspapers in the Fifth Circuit.
• The appellate court ruled that NewsBreak did not "transmit" copyrighted content to users, establishing a "transmit requirement" for infringement liability.
• This "transmit requirement" differs from the Ninth Circuit's "server test" but led to the same outcome for NewsBreak.
• The court also found that some URLs *could* qualify as "copyright management information" under the DMCA, but this determination depends on several specific factors.
• This nuanced ruling on URLs creates uncertainty for common internet practices like URL shortening, which future cases will need to clarify.

This aspect of the Fifth Circuit NewsBreak copyright ruling introduces a degree of uncertainty for online content platforms and aggregators, suggesting a need for careful review of linking practices and URL handling to mitigate potential future DMCA liability, especially concerning URL modification or shortening.

The Fifth Circuit Court of Appeals recently affirmed a lower court's decision in a significant copyright dispute, ruling in favor of news aggregator NewsBreak against publisher Emmerich Newspapers. This Fifth Circuit NewsBreak copyright ruling centered on claims of NewsBreak copyright infringement related to embedded news articles displayed within NewsBreak's application. Emmerich Newspapers, which operates local publications across Mississippi, Louisiana, and Arkansas, had challenged a district court's finding that NewsBreak did not violate its intellectual property rights.

The three-judge appellate panel, comprising U.S. Circuit Judges Stephen Higginson (an Obama appointee), Senior U.S. Circuit Judge Carolyn King (a Carter appointee), and U.S. Circuit Judge Kyle Duncan (a Trump appointee), ultimately agreed with the outcome of the lower court. However, their reasoning diverged significantly from the district judge's approach. The panel concluded that NewsBreak did not infringe on Emmerich's copyright because it was Emmerich, not NewsBreak, that was responsible for transmitting the embedded content to users, likening the aggregator's role to that of a "switchboard operator." This established a crucial transmit requirement copyright standard for the circuit.

Central to the Fifth Circuit's decision was its emphasis on what it termed the "transmit requirement" under copyright law. The court held that for copyright infringement to occur through transmission, the alleged infringer must actually possess and send the copyrighted work to the user. As Judge Higginson articulated, a website cannot transmit content it does not physically "have." This approach contrasts with the "server test," a controversial Ninth Circuit legal doctrine that the district court had initially relied upon. The "server test" posits that copyright liability for online media hinges on whose server stores the content, leading Senior U.S. District Judge Tom Lee (a Reagan appointee) to conclude that NewsBreak did not infringe by merely directing users' computers to content stored on Emmerich's servers.

While both the "server test" and the Fifth Circuit's "transmit requirement" led to the same conclusion in this specific case—that NewsBreak was not liable—the appellate panel underscored its obligation to interpret the Copyright Act's language as enacted by Congress. The judges acknowledged the common user perception that Fifth Circuit in-line linking makes content appear as if it resides on the host webpage. However, they stressed their judicial role in strictly interpreting statutory definitions, ultimately finding that NewsBreak's method of displaying embedded content did not meet the legal definition of "transmission" by the aggregator itself.

Beyond the direct copyright infringement claim, the appellate panel also addressed a critical question concerning the Digital Millennium Copyright Act (DMCA): whether Uniform Resource Locators (URLs) can constitute "copyright management information" (CMI). Emmerich Newspapers argued that the URLs for its articles were CMI and that NewsBreak violated the DMCA by altering them. The court determined that the DMCA does not "foreclose" the possibility of URLs being CMI, but it stopped short of declaring all URLs as such.

Instead, the Fifth Circuit outlined several factors that would need to be considered on a case-by-case basis to determine if a particular URL qualifies as CMI. These factors include whether the domain name corresponds with the copyright owner, if the copyright extends to the entire website or specific pages, the stability of the URL, and, most importantly, whether the URLs are clearly conveyed for the purpose of communicating a copyrighted work. This nuanced stance on DMCA copyright management information URL introduces a layer of complexity for online platforms.

The court's determination that some, but not all, URLs could be considered CMI under the DMCA has significant implications for internet practices. NewsBreak's owner, Particle Media, had previously argued that treating URLs as CMI could transform the internet into a "DMCA quagmire overnight," particularly given the widespread practice of shortening URLs. Such common actions, if URLs were broadly deemed CMI, could inadvertently become violations of the Act.

The appellate judges recognized the potential for "great practical effects" stemming from their answers to these questions, acknowledging the ubiquity of linking across the internet. They explicitly stated that "future cases will need to decide where the line is with respect to such commonplace practices." This aspect of the Fifth Circuit NewsBreak copyright ruling introduces a degree of uncertainty for online content platforms and aggregators, suggesting a need for careful review of linking practices and URL handling to mitigate potential future DMCA liability, especially concerning URL modification or shortening.

This ruling clarifies the 'transmit requirement' for copyright infringement in the Fifth Circuit but introduces uncertainty regarding URLs as 'copyright management information' under the DMCA. Lawyers advising online content platforms and aggregators should review linking practices and URL handling to mitigate potential future DMCA liability, particularly concerning URL modification or shortening.

Source: Original reporting via Courthouse News Service