News publishers take fight over copyright of embedded content to Fifth Circuit

(CN) — A newspaper publisher urged a Fifth Circuit panel Tuesday to rule that the news aggregator NewsBreak violated the company’s copyright to its online articles by displaying embedded versions of them on the NewsBreak app.

Emmerich Newspapers, which publishes local newspapers across Mississippi, Louisiana and Arkansas, is suing NewsBreak owner Particle Media, claiming the company violated the Copyright Act and the Digital Millennium Copyright Act by displaying online articles from Emmerich publications on its app.

Last year, Senior U.S. District Judge Tom Lee of the Southern District of Mississippi rejected a portion of Emmerich’s claims, ruling Particle isn’t liable under copyright law for embedded articles.

The Ronald Reagan appointee relied on the “server test,” a controversial theory developed by the Ninth Circuit holding that copyright liability for online media is determined by whose server is storing the content. Under this theory, website owners aren’t liable for embedded content, as they are merely directing the user’s computer to display content stored on another entity’s server.

Mike Wallace, an attorney representing Emmerich, urged the Fifth Circuit panel to reject the server test, arguing that it relies too much on how certain technologies work rather than on the plain language of the Copyright Act.

“The men and women who adopted the Copyright Act in 1976 never heard of the internet, nor did they have any idea of how it would operate,” Wallace said. “They did know that communications technology had been changing ever since Gutenberg built his printing press, so they designed their statute to apply to existing technologies and to future technologies that they could not imagine. To so, they used English words of commonly accepted meanings, which did not require an engineering degree to understand.”

Wallace said the panel should find that Particle is liable for copyright infringement because its actions were the “driving force” of Emmerich’s articles being shown to NewsBreak users.

But Steve Carmody, an attorney representing Particle, called the server test “a bright-line rule” that is “easy to comprehend.”

“It’s been the backbone of the internet for 20 years, the free exchange of information from one internet server, one browser to another, one website to another,” Carmody said. “That’s the whole building block of the internet, and what they want to do is to eliminate that building block.”

Emmerich is also asking the Fifth Circuit to overturn Lee’s ruling that URLs don’t constitute copyright management information, or CMI, and therefore Particle didn’t illegally remove CMI by altering the URLs of Emmerich articles.

The Digital Millennium Copyright Act prohibits the removal or alteration of CMI, which includes identifying information like the title of a piece. Emmerich argues that it uses URLs to identify its articles, and therefore Particle illegally removed CMI by altering its URLs.

U.S. Circuit Judge Stephen Higginson asked whether this means people who use applications that shorten URLs like Harvard Library’s Perma.cc are violating copyright law.

Carmody responded that the DMCA contains a requirement that acts a “limiting principle” whereby a person is only liable for altering CMI if they do so with the intent to conceal copyright infringement.

But Wallace argued that URLs are fundamentally different from CMI, as their purpose is to identify the location of material online. He pointed out that the Fifth Circuit uses shortened URLs in citations.

“Are you all infringers?” Wallace asked. “No, I’d hope not. So I think that what you need to do is you’ve got to look at what a URL is, and a URL is a locator.”

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.