Brief of Copyright Scholars as Amici Curae in Support of Respondent in Emmerich Newspapers, Inc. v. Particle Media, Inc.

Authors

• Jess Miers, University of AkronFollow
• Mark A. Lemley, Stanford University
• Rebecca Tushnet, Harvard University

Document Type

Court Filing

Publication Date

3-2-2026

Abstract

The server test has served us well for nearly two decades. It matches the language of the statute, the well-settled distinction between direct and secondary liability, and the nature of the technology. The copyright owner here makes the work available freely to every site visitor, and may stop embedding with a few clicks on the keyboard. There is no need to strain the law of direct liability to protect any legitimate interests it might have.

This Court should decline the invitation to create a circuit split that would upset settled expectations and turn millions of online posters into infringers overnight.

Comments

Emmerich Newspapers, Inc. v. Particle Media, Inc., Fifth Circuit No. 25-60550

Recommended Citation

Miers, Jess; Lemley, Mark A.; and Tushnet, Rebecca, "Brief of Copyright Scholars as Amici Curae in Support of Respondent in Emmerich Newspapers, Inc. v. Particle Media, Inc." (2026). Akron Law Faculty Publications. 484.
https://ideaexchange.uakron.edu/ua_law_publications/484