The Fifth Circuit Does Fifth Circuit Things in Copyright Embedding Case–Emmerlich v. Particle

Here is a real-time video of me trying to read any new Fifth Circuit opinion on Internet Law: Odds are that the outcome will be terrible; and even if not, the reasoning will be 100% cringe. * * * Embed/in bed This opinion revisits the question of when embedding constitutes copyright infringement. This should have been an easy case. The Ninth Circuit has repeatedly and decisively concluded that embedding doesn’t constitute direct copyright infringement due to the “Server Test,” i.e., direct liability for a public display requires the alleged infringer to have a fixed “copy” of the work stored on a server in its possession or control. The Ninth Circuit reaffirmed the Server Test in a major 2023 ruling, Hunley v. Instagram. In this lawsuit, the lower court relied on the Ninth Circuit’s Server Test to dismiss the claim. On appeal, the Fifth Circuit finds a way to undo everything in a dense, tendentious, tangent-filled, cringy, and poorly drafted decision. #BringTissues. * * * Description…