The Server Test’s Fraternal Twin: What the Fifth Circuit’s Emmerich Decision Changes — and What It Doesn’t

On August 27, 2026, the Fifth Circuit held that a news aggregator that frames headlines and sends readers back to the original publisher’s site does not itself publicly display those articles under the Copyright Act. The Fifth Circuit rejected the Ninth Circuit’s “server test,” which shields sites that embed or frame content hosted elsewhere from direct liability under the display right. But its reading of the statute leaves embedders in much the same position they were in under the server test.
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