Fifth Circuit sides with news aggregator in copyright battle

The appeals panel also determined that some URLs could count as copyright management information, which could have implications for linking back and forth on the internet.(CN) — News aggregator NewsBreak prevailed Thursday in a copyright dispute with a publisher who took issue with embedded news articles displayed on NewBreak’s app.Emmerich Newspapers, which publishes local newspapers across Mississippi, Louisiana and Arkansas, had challenged a lower court’s decision that NewsBreak did not violate its copyright.But likening NewsBreak to “a switchboard operator,” the three-judge panel of the Fifth Circuit found it was Emmerich, not NewsBreak, that transmitted the embedded content to users, and therefore the news aggregator did not violate Emmerich’s copyright.“We recognize that there is an apparent tension between how users may view this technology and what the Copyright Act’s language compels us to find,” U.S. Circuit Judge Stephen Higginson wrote. “Linking, specifically in-line linking, can make content appear as though it is on the host or third-party webpage. But, in our Article III role, our obligation is to interpret the constraining language — especially its nested definitions — as enacted by Congress.”Senior U.S. Circuit Judge Carolyn King, a Jimmy Carter appointee, and U.S. Circuit Judge Kyle Duncan, a Donald Trump appointee, joined Higginson, a Barack Obama appointee, on the panel.While the panel arrived at the same conclusion as Senior U.S. District Judge Tom Lee, the panel focused on what it called “the transmit requirement” rather than the “server test” Lee relied on.The “server test” is a controversial Ninth Circuit legal doctrine holding that copyright liability for online media is determined by whose server is storing the content.Based on that theory, Lee, a Ronald Reagan appointee, found that NewsBreak did not violate Emmerich’s copyright by displaying embedded content, as it merely directed users’ computers to display content stored on Emmerich’s servers. But the panel said what matters is who transmits information to the user.“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,” Higginson wrote.The panel also considered whether URLs constitute “copyright management information” and are thus protected from unauthorized removal or alteration under the Digital Millennium Copyright Act.Emmerich argues the URLs for its articles are CMI, and therefore NewsBreak violated the act by changing them.The panel said the act doesn’t “foreclose” them from constituting CMI, but whether a particular URL is CMI would need to be determine based on a number of factors, including “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.”NewsBreak owner Particle Media argued that if URLs are treated as CMI, “the internet would become a DMCA quagmire overnight,” as the common practice of shortening URLs would become a violation of the act.The judges recognized that their determination that some, but not all, URLs could constitute CMI opens up potential problems.“Given the ubiquity of linking on the internet, we recognize the great practical effects that could follow our answers to these questions,” Higginson wrote. “Future cases will need to decide where the line is with respect to such commonplace practices.”Particle Media did not immediately respond to a request for comment on the ruling.In an email to Courthouse News Service, Wilson Carroll, an attorney representing Emmerich, said his client was “pleased” with the court’s ruling. He praised the panel’s rejection of the server test and its determination that URLs can sometimes constitute CMI.“We believe these are important rulings not only for Emmerich Newspapers, but for publishers and other copyright owners throughout the Fifth Circuit,” Carroll wrote. “The decision recognizes that longstanding copyright protections must be applied carefully and faithfully as technology changes, and that digital platforms cannot avoid scrutiny simply because their methods of displaying and identifying copyrighted material are technologically complex.”Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads