Does Embedding Third-Party Content Infringe Copyright? Emmerich and Argentina Compared

Embedding third-party content is not automatically copyright infringement, but Argentine law does not make it safe merely because the file remains on the original server. In the United States, the Fifth Circuit held in Emmerich Newspapers v. Particle Media that a linking site does not directly transmit a work when the user’s browser obtains it from the copyright owner’s authorised server. Argentina has no equivalent “server test”: the analysis would turn on the authority of the source, the embedder’s actual role, and whether its conduct amounts to reproduction, public exhibition or another exploitation of the work.

What embedding and framing mean

When a website inserts a video, social-media post, image or entire external page, its code usually instructs the user’s browser to request that content from a third-party server. The work appears within the page being visited even though the file may never be copied there. This is commonly described as embedding, inline linking or, when an external page is placed inside a visible container, framing.

The distinction matters. If site A downloads a photograph and uploads it again, it stores and serves its own copy. If it only inserts a resource hosted by site B, the user’s browser communicates with B. The new US decision asks who displays or transmits the work in the latter scenario.

Emmerich Newspapers v. Particle Media

Emmerich publishes more than twenty-six local news outlets in the United States. It sued Particle Media, operator of the NewsBreak aggregator, because the app opened Emmerich articles in a framed view without visibly moving the user outside the NewsBreak environment. Emmerich argued that this presentation retained engagement while allowing NewsBreak interface elements and potential advertising to remain around the article.

In its August 27, 2026 opinion, the Fifth Circuit decided two legal questions on interlocutory appeal. It considered whether the server test governed infringement of the public-display right and whether a URL could constitute copyright management information under the DMCA. The court deliberately answered those narrow questions and remanded the case; it did not finally dispose of every claim asserted by Emmerich.

The server test and the Fifth Circuit’s transmit requirement

The server test originated with the Ninth Circuit’s 2007 decision in Perfect 10 v. Amazon. In simplified terms, a website does not directly display an image if it does not store and serve the relevant file from its own server. It may provide instructions that cause a browser to request the file from someone else without becoming, through that act alone, the party that possesses and serves the copy.

The Fifth Circuit rejected fixation and server location as the best statutory basis. It focused instead on the Copyright Act’s use of “transmit.” The central inquiry is where the communication that delivers the work to the user originates. Although this reasoning takes a different route, the result for a conventional authorised embed may be similar.

NewsBreak sent the browser directions, but Emmerich’s server retained the article, decided whether to respond and transmitted its own copy. The court compared the aggregator to a switchboard operator: it can connect a call, but the exchange does not occur unless the person at the other end answers.

The holding has important limits. It assumes that the transmission originates with the copyright owner or another authorised source, that the embedding site merely requests the resource and that the source retains the technological ability to accept or reject the request. It does not authorise embedding an infringing copy hosted by a third party, storing a local version, bypassing a paywall or evading anti-framing controls.

A URL may also carry copyright information

The appeal addressed a separate issue arising from an alleged period in which full copies of articles appeared under NewsBreak URLs without part of the original identifying information. The Fifth Circuit held that URLs are not categorically excluded from the DMCA definition of copyright management information. A particular URL could qualify when it clearly communicates a protected work’s title, owner or another statutory category of information.

This does not mean that every address is CMI or that shortening a URL automatically violates the DMCA. The relevant facts may include whether the domain corresponds to the copyright owner, whether the address is stable and whether it is actually conveyed as information about the protected work.

Why the US analysis cannot simply be imported into Argentina

Argentina’s Copyright Act No. 11,723 predates the internet and does not expressly distinguish hotlinking, embedding, framing and rehosting. Nor does it provide that the absence of a copy on the defendant’s server necessarily disposes of infringement. An Argentine court would have to interpret the exclusive rights, statutory exceptions, the technical conduct and the role assumed by each participant.

Open access is not necessarily a general licence to incorporate a work into any interface. Terms of use, an official embed function, technological controls, source attribution, licence scope and the commercial presentation may all matter. An official sharing tool strengthens the argument for permission; evading restrictions or appropriating the entire user experience increases risk.

Rodríguez v. Google: Argentina’s closest Supreme Court authority

In Rodríguez, María Belén v. Google, Fallos 337:1174, Argentina’s Supreme Court considered search-engine liability for results and image thumbnails. The majority described the thumbnail as performing a mere-link function: it gave users an idea of the underlying page and helped them decide whether to visit it, while the original content remained attributable to the publisher of the source page.

The analogy supports the proposition that directing a user to a work hosted by another party does not always amount to publishing it as one’s own. But the case involved reputation and image rights, not the framing of complete newspaper articles under section 2 of Act No. 11,723. Justices Lorenzetti and Maqueda also dissented in part, reasoning that reduced copies of photographs required consent under section 31. The decision provides principles on intermediary liability and knowledge, not a technical safe harbour for every embed.

Taringa and Cuevana illustrate opposite ends of the spectrum

In 2018, Federal Oral Criminal Court No. 26 acquitted the operators of Taringa in a prosecution involving links posted by users to files hosted on other platforms. The full Taringa judgment rejected a general prior-monitoring obligation and emphasised serious evidentiary gaps: in many instances the prosecution had not established what the linked destination contained or whether it was unlawful. It was a criminal decision about an intermediary and user posts, not a declaration that every editor-selected link or embed is lawful.

At the other end, a 2011 injunction ordered access providers to block Cuevana resources used for the unauthorised reproduction or communication of television series. The official Cuevana report concerned unauthorised sources and a platform organised to facilitate access to the works. Source authority and the platform’s participation materially change the analysis.

A practical Argentine example

A compliance checklist for embedded content

Authorised source: confirm that the file comes from the rightsholder, a licensee or an authorised platform. An embed does not cure an infringing source.

Technical flow: document whether the browser retrieves the resource directly or whether your system downloads, caches, modifies or retransmits it.

Permissions and controls: review terms of use, official embed tools, licence scope and any anti-framing, anti-hotlinking or authenticated-access measures.

Presentation: preserve attribution and provenance. Avoid an interface that represents the content as your own or suggests a nonexistent affiliation.

Complaints: identify the exact URL, preserve technical records and assess notices promptly. Our analysis of copyright, ownership and transformed products explains why ownership of a physical or technical layer does not automatically transfer every right in the underlying work.

For digital products, aggregators and AI systems, technical architecture is part of the legal analysis. Our guide to Creative Commons permissions and technological restrictions provides another example of why the licence and the implementation must be read together. Through our intellectual property and technology practice, we review these layers before launch and when a dispute arises.

Frequently asked questions

Is embedding the same as copying? Not necessarily. In a conventional embed, the file remains on the source server and the browser requests it there. Permission and presentation still matter.

Can I embed anything that is publicly accessible? There is no general rule guaranteeing that result. Public access, a reuse licence and permission to embed are different questions.

Does Argentina have a server test? No. Argentina has cases on links, search engines and intermediaries, but no rule making liability turn exclusively on the server that hosts the copy.

What changes if I store the file on my server? Risk increases materially because the site is no longer only directing a browser to a source; it is reproducing and serving another copy from its own infrastructure.