Featured Stories
Troutman Pepper Locke Expands Northeast Presence in The Bond Buyer Mid-Year 2026 Report, Ranking Among Region's Top Bond Counsel
ATLANTA, Georgia, Sept. 4 (TNSxrep) -- Troutman Pepper, a law firm, issued the following news:
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Troutman Pepper Locke Expands Northeast Presence in The Bond Buyer Mid-Year 2026 Report, Ranking Among Region's Top Bond Counsel
BOSTON - Troutman Pepper Locke's Public Finance Practice Group continues to deliver on important bond counsel matters across the Northeast, earning new recognition in two markets and ranking No. 6 in the region in The Bond Buyer's mid-year 2026 report. Nationally, the firm recorded the second-highest deal count as bond counsel for competitive issues in the first half
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ATLANTA, Georgia, Sept. 4 (TNSxrep) -- Troutman Pepper, a law firm, issued the following news:
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Troutman Pepper Locke Expands Northeast Presence in The Bond Buyer Mid-Year 2026 Report, Ranking Among Region's Top Bond Counsel
BOSTON - Troutman Pepper Locke's Public Finance Practice Group continues to deliver on important bond counsel matters across the Northeast, earning new recognition in two markets and ranking No. 6 in the region in The Bond Buyer's mid-year 2026 report. Nationally, the firm recorded the second-highest deal count as bond counsel for competitive issues in the first halfof 2026, a mark of the firm's strong reputation and activity in the market.
Across the Northeast region, the firm earned strong state-level rankings, including No. 2 in Massachusetts, No. 3 in Rhode Island, and No. 5 in New Hampshire. The firm also ranked for the first time as No. 3 in Maine and No. 5 in Connecticut, underscoring a broadening footprint across the region.
"These rankings reflect the significant growth our team has driven throughout the Northeast, and we are proud to see that work recognized," said Rick Manley, leader of Troutman Pepper Locke's Public Finance Practice Group. "We bring one of the largest bond counsel practices in the country to every transaction, and that experience is what drives results for our clients."
Just a few of Troutman Pepper Locke's recent notable public finance matters include representing the:
1. North Texas Tollway Authority in connection with its First Tier Revenue Refunding Bonds, Series 2026A and North Texas Tollway Authority System Second Tier Revenue Refunding Bonds, Series 2026B, valued at $800 million.
2. City of Boston, Massachusetts, in connection with its issuance of General Obligation Bonds, 2026 Series A, and General Obligation Refunding Bonds, 2026 Series B, valued at $609.7 million.
3. Massachusetts Housing Finance Agency in connection with the issuance of $169.75 million Single Family Housing Revenue Bonds, Series 252-254.
4. City of Cambridge, Massachusetts, in connection with its annual capital improvement program bond financings valued at $144.42 million.
5. Northeastern University in connection with the issuance of $436.4 million Massachusetts Development Finance Agency Revenue Bonds, Northeastern University Issue, Series 2026A.
6. Maine Department of Transportation in connection with the Maine Municipal Bond Bank's issuance of $250 million in Transportation Infrastructure Revenue Bonds under the TransCap Program, comprising Highway and Bridge Bonds, Series 2026A and General Transportation Project Bonds, Series 2026A (Federally Taxable).
7. Narragansett Bay Commission in connection with the issuance of the Commission's $75 million Wastewater System Revenue Bonds, 2026 Series A.
8. Brandeis University in connection with the issuance of $37.65 million Massachusetts Development Finance Agency Revenue Bonds, Brandeis University Issue, Series U-1 (2026) and $29.44 million Massachusetts Development Finance Agency Revenue Bonds, Brandeis University Issue, Series U-2 (2026).
9. Miami-Dade County, Florida, in connection with its Capital Asset Acquisition Special Obligation Bonds, Series 2026A, valued at $455 million.
10. Palm Beach County, Florida, in connection with its Revenue Refunding Bonds, Series 2025, valued at $80 million.
11. Wells Fargo and five other co-managers, in connection with the $333.72 million State of Wisconsin General Obligation Refunding Bonds of 2026, Series 1 and $128.32 million State of Wisconsin General Obligation Refunding Bonds of 2027, Series 1 (Forward Delivery).
12. Housing Authority of the City of Port Arthur, in connection with the issuance of $41.05 million Residential Development Revenue Bonds (Willow Lakes Project), Senior Credit Enhanced 2026 Series A, $11.05 million Subordinate 2026 Series A-S-A, and $10.47 million Subordinate 2026 Series A-S-B.
13. J.P. Morgan and three other co-managers, in connection with the City of Fort Worth, Texas Special Tax Revenue Bonds (Convention Center Venue Project), Series 2026, valued at $529.79 million.
Troutman Pepper Locke's Public Finance Practice Group has one of the largest bond counsel practices in the country. For more than 135 years, the firm has been involved in the law of public borrowing and the federal tax and securities aspects of public debt obligations. The firm's public finance lawyers have extensive experience nationwide serving as bond counsel, disclosure counsel, underwriters' counsel, issuer's counsel, borrower's counsel, bank counsel, special tax counsel, and trustee's counsel for governmental and quasi-governmental issuers, special purpose entities, tax-exempt organizations, and other entities and financial institutions.
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Troutman Pepper Locke
Troutman Pepper Locke helps clients solve complex legal challenges and achieve their business goals in an ever-changing global economy. With more than 1,600 attorneys in 30+ offices, the firm serves clients in all major industry sectors, with particular depth in energy, financial services, health care and life sciences, insurance and reinsurance, private equity, and real estate. Learn more at troutman.com.
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Original text here: https://www.troutman.com/insights/troutman-pepper-locke-expands-northeast-presence-in-the-bond-buyer-mid-year-2026-report-ranking-among-regions-top-bond-counsel/
[Category: BizLaw/Legal]
Ropes & Gray Advised TSG Consumer Partners in Strategic Investment in Los Tacos No. 1
BOSTON, Massachusetts, Sept. 4 -- Ropes and Gray, a law firm, issued the following news:
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Ropes & Gray Advised TSG Consumer Partners in Strategic Investment in Los Tacos No. 1
Ropes & Gray represented TSG Consumer Partners in its strategic investment in Los Tacos No. 1, a New York City-based restaurant known for its authentic Tijuana-style tacos.
The transaction was announced on September 3. Financial terms were not disclosed.
The partnership is designed to bring Los Tacos No. 1 to a wider audience while keeping the food and shops true to its roots.
Founded in 1986, TSG Consumer Partners
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BOSTON, Massachusetts, Sept. 4 -- Ropes and Gray, a law firm, issued the following news:
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Ropes & Gray Advised TSG Consumer Partners in Strategic Investment in Los Tacos No. 1
Ropes & Gray represented TSG Consumer Partners in its strategic investment in Los Tacos No. 1, a New York City-based restaurant known for its authentic Tijuana-style tacos.
The transaction was announced on September 3. Financial terms were not disclosed.
The partnership is designed to bring Los Tacos No. 1 to a wider audience while keeping the food and shops true to its roots.
Founded in 1986, TSG Consumer Partnersis a leading consumer-focused private equity firm with approximately $14 billion in assets under management.
The Ropes & Gray team was led by private equity partner Sandy Boer and included private equity partner Annie Sipe, tax partners Alyssa Kollmeyer and Pamela Glazier, and employment, executive compensation & benefits partner Kyle Higley.
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Original text here: https://www.ropesgray.com/en/news-and-events/news/2026/09/ropes-gray-advised-tsg-consumer-partners-in-strategic-investment-in-los-tacos-no-1
[Category: BizLaw/Legal]
Pillsbury Advises Thyme Care on Series E Funding Round Totaling More Than $125 Million
NEW YORK, Sept. 4 -- Pillsbury, a law firm, issued the following news release:
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Pillsbury Advises Thyme Care on Series E Funding Round Totaling More Than $125 Million
Pillsbury advised Thyme Care, a nationally recognized oncology company, on its Series E funding round that raised more than $125 million.
Morgan Health led the round, with participation from strategic healthcare investors Humana and CVS Health Ventures and institutional investors AlleyCorp, HealthQuest Capital, Foresite Capital, Concord Health Partners, Frist Cressey Ventures, Town Hall Ventures and a16z Bio + Health.
The
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NEW YORK, Sept. 4 -- Pillsbury, a law firm, issued the following news release:
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Pillsbury Advises Thyme Care on Series E Funding Round Totaling More Than $125 Million
Pillsbury advised Thyme Care, a nationally recognized oncology company, on its Series E funding round that raised more than $125 million.
Morgan Health led the round, with participation from strategic healthcare investors Humana and CVS Health Ventures and institutional investors AlleyCorp, HealthQuest Capital, Foresite Capital, Concord Health Partners, Frist Cressey Ventures, Town Hall Ventures and a16z Bio + Health.
Thefinancing brings together investors from across the cancer care ecosystem, including leading national payers, community oncology practices, health systems and organizations focused on employer-sponsored health care.
In conjunction with the Series E financing, Thyme Care is establishing Thyme Companies, a newly formed parent entity that will build a portfolio of independent oncology businesses focused on addressing persistent barriers to better cancer care. Grounded in data, enabled by technology and built on trusted partnerships, Thyme Companies aims to take on oncology's most complex challenges.
Click here to learn more.
The Pillsbury deal team included Emerging Companies and Venture Capital partner Ron Fleming, counsel Taylor O'Toole and associate Sarah Konnerth, Tax partner Nora Burke, Executive Compensation & Benefits partner Jessica Lutrin and senior law clerks Claudia Hanover and Lauryn Holliday.
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URL: Thyme Care
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Original text here: https://www.pillsburylaw.com/en/news-and-insights/pillsbury-thyme-care-series-e-funding-round-more-than-125m.html
[Category: BizLaw/Legal]
K&L Gates Advises AUMOVIO on Sale of Washer and Cleaning Business Group to CERTINA Group
PITTSBURGH, Pennsylvania, Sept. 4 -- K&L Gates, a law firm, issued the following news release:
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K&L Gates Advises AUMOVIO on Sale of Washer and Cleaning Business Group to CERTINA Group
Global law firm K&L Gates has advised AUMOVIO on the sale of its washer and cleaning business based at its Adrspach site in the Czech Republic to the CERTINA Group. The CERTINA Group, a family-run industrial holding company based in Munich, Germany, will acquire the business, including all employees and business activities, and continue its operations.
The transaction is part of AUMOVIO's strategy to focus
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PITTSBURGH, Pennsylvania, Sept. 4 -- K&L Gates, a law firm, issued the following news release:
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K&L Gates Advises AUMOVIO on Sale of Washer and Cleaning Business Group to CERTINA Group
Global law firm K&L Gates has advised AUMOVIO on the sale of its washer and cleaning business based at its Adrspach site in the Czech Republic to the CERTINA Group. The CERTINA Group, a family-run industrial holding company based in Munich, Germany, will acquire the business, including all employees and business activities, and continue its operations.
The transaction is part of AUMOVIO's strategy to focuson its core business.
K&L Gates recently also advised AUMOVIO on the sale of its Belgian manufacturing site for hydraulic and electronic automotive components to the Dumarey Group, as well as its drum brake manufacturing site in Cairo Montenotte, Italy, to Mutares.
The K&L Gates team was led by Frankfurt partner Boris Klasener, supported by Berlin senior associate Dr. Gabriella Piras and Frankfurt associate James Schutze (all Corporate/M&A), Berlin partner Dr. Thomas Nietsch, and Frankfurt counsel Dr. Ulrike Elteste (both Technology Transactions). Frankfurt partner Rainer Schmitt advised on tax matters. Berlin partner Dr. Annette Mutschler-Siebert and Berlin counsel Marion Baumann advised on antitrust matters.
K&L Gates is a globally integrated law firm trusted by sophisticated clients to deliver market leading legal counsel across jurisdictions and industries. Operating as one firm worldwide, K&L Gates combines deep local insight with seamless global coordination to address clients' most complex legal and business challenges. Guided by a relentless focus on client service, the firm delivers practical, high impact solutions with consistency, efficiency, and a clear emphasis on results.
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URL: AUMOVIO
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Original text here: https://www.klgates.com/KL-Gates-Advises-AUMOVIO-on-Sale-of-Washer-and-Cleaning-Business-Group-to-CERTINA-Group-9-3-2026
[Category: BizLaw/Legal]
Herbert Smith Freehills Kramer Advises Visaible on Its Capital Raise
NEW YORK, Sept. 4 -- Herbert Smith Freehills Kramer LLP, a law firm, issued the following news:
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Herbert Smith Freehills Kramer advises Visaible on its capital raise
Herbert Smith Freehills Kramer's (HSF Kramer) venture & growth capital team has advised Visaible on its $1 million initial capital raise. The round was led by Blacksheep Capital.
This new capital will be employed to fund the build of its platform and the global expansion of the company.
Founded by Sam Rich, Visaible is an Australian company whose agentic software helps hotels drive direct bookings in the fastest growing
... Show Full Article
NEW YORK, Sept. 4 -- Herbert Smith Freehills Kramer LLP, a law firm, issued the following news:
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Herbert Smith Freehills Kramer advises Visaible on its capital raise
Herbert Smith Freehills Kramer's (HSF Kramer) venture & growth capital team has advised Visaible on its $1 million initial capital raise. The round was led by Blacksheep Capital.
This new capital will be employed to fund the build of its platform and the global expansion of the company.
Founded by Sam Rich, Visaible is an Australian company whose agentic software helps hotels drive direct bookings in the fastest growingtravel discovery channel - AI (e.g. ChatGPT, Claude).
The HSF Kramer team was led by partner Elizabeth Henderson with senior associate Adam Ong in the Sydney and Melbourne offices.
Adam Ong, senior associate at HSF Kramer, said, "It was a pleasure working with Sam on his first capital raise. Visaible are developing a sector specific and highly relevant tool that will help hotels stay visible as travellers increasingly use AI tools to plan their trips and we are excited to grow with them."
Elizabeth Henderson, partner at HSF Kramer, said: "Huge congratulations to Sam on this milestone and we look forward to seeing Visaible grow."
Sam Rich, Founder of Visaible, said: "As an early stage business focused on our customers and building out the best agentic software, it was incredible to have the experience and dedication of HSF Kramer assisting us with the intricacies that come with a capital raise."
This deal is another example of HSF Kramer's market-leading work in venture and growth capital raisings. Other recent examples include:
* Infravision Holdings on its A$140 million Series B funding round
* PlasmaLeap Technologies on its $30 million Series A capital raise
* Kasada on its US$20 million Series E funding round
* Brainfish on its $9.8 million in a pre-Series A capital raise
* Hapana on its funding rounds led by OIF Ventures and Microequities
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URL: Visaible
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Original text here: https://www.hsfkramer.com/news/2026-09/hsf-kramer-visaible-capital-raise
[Category: BizLaw/Legal]
Fisher Phillips Issues Insight: White House Proposal Targets Tax-Exempt Status for Private Colleges and Schools Over DEI Concerns - 5 Steps for Educational Institutions
ATLANTA, Georgia, Sept. 4 -- Fisher Phillips, a law firm, issued the following Insight on Sept. 3, 2026:
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White House Proposal Targets Tax-Exempt Status for Private Colleges and Schools Over DEI Concerns: 5 Steps for Educational Institutions
A new White House proposal could jeopardize the federal tax-exempt status of thousands of private colleges, universities, and other educational institutions, including K-12 schools, if you maintain programs or practices the government considers racially discriminatory. The Trump administration's proposed regulations, which were just announced today,
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ATLANTA, Georgia, Sept. 4 -- Fisher Phillips, a law firm, issued the following Insight on Sept. 3, 2026:
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White House Proposal Targets Tax-Exempt Status for Private Colleges and Schools Over DEI Concerns: 5 Steps for Educational Institutions
A new White House proposal could jeopardize the federal tax-exempt status of thousands of private colleges, universities, and other educational institutions, including K-12 schools, if you maintain programs or practices the government considers racially discriminatory. The Trump administration's proposed regulations, which were just announced today,aim to ensure institutions don't use race-based preferences under the banner of diversity, equity, and inclusion (DEI) programs. What should colleges, universities, and other private educational institutions know about this development, and what five steps should you consider taking now?
Scope of the Proposed Regulations
The Treasury Department and IRS announced proposed regulations on September 3 that would condition federal tax-exempt status for private educational institutions on compliance with a nondiscrimination standard covering race, color, and national or ethnic origin. The agencies estimate that as many as 18,000 private educational institutions could fall within the proposal's scope, covering about 750,000 students.
At first glance, the proposed regulations are quite broad. They would extend beyond admissions and reach scholarships and financial aid, athletics, educational policies, and other school-administered or school-supported programs. They also would cover private elementary and secondary schools (K-12), as well as colleges, universities, professional schools, and trade schools.
At the same time, the administration says institutions could continue programs designed to expand educational opportunities when eligibility is determined through race-neutral criteria. Examples of criteria institutions could continue using include:
* Family income
* Geographic location
* First-generation status
* Individual hardship
* Military-family status
* Academic achievement
The proposal also states that religious schools could continue maintaining religious missions and programs and, where appropriate, make decisions based on genuine religious affiliation.
What Schools Can Expect Next
You should note that the September 3 announcement is just a proposal at this point, rather than a final rule. If finalized as proposed, the regulations would likely apply to taxable years beginning on or after May 31, 2027.
The Treasury Department and the IRS specifically anticipate that scholarships and financial aid programs could require significant revision. Additionally, for any donor-restricted scholarships, schools may need to work with donors or their heirs to revise eligibility requirements.
The proposal represents another significant development in the federal government's expanding scrutiny of diversity-related practices in education. Unlike federal funding issues that may affect particular grants or programs, this initiative could implicate an institution's underlying federal tax-exempt status, raising the stakes considerably for private colleges, universities, and schools.
5 Steps Colleges, Universities, and K-12 Schools Should Consider Taking Now
Given the potential financial consequences associated with an institution's federal tax-exempt status, educational institutions should consider preparing now rather than waiting for the rulemaking process to conclude. Taking these five steps can help you stay ahead of the curve:
1. Inventory Programs and Practices That Use Race or Similar Criteria: Institutions should identify admissions, scholarship, financial aid, student-support, athletics, employment-adjacent, and other programs where race, color, national origin, or ethnicity is expressly considered or could affect eligibility or benefits.
2. Review DEI and Student-Support Initiatives: Colleges and schools should examine diversity, equity, inclusion, belonging, pipeline, mentorship, fellowship, and affinity-based programs to understand their eligibility standards and how they operate in practice. Institutions may also want to document the educational objectives served by these programs and identify whether race-neutral alternatives could accomplish those objectives.
3. Examine Scholarship and Financial Assistance Criteria: The proposal expressly reaches scholarships and financial aid, so institutions should review both school-funded programs and programs administered in partnership with donors or outside organizations. Schools should determine which awards use protected characteristics as eligibility requirements or selection criteria and evaluate whether alternative eligibility criteria may be appropriate. For donor-restricted scholarships or other endowed funds, schools should consult with legal counsel regarding what may be required to potentially redefine eligibility.
4. Prepare for Increased Federal Scrutiny: Institutions should consider how they would respond if asked to explain a challenged program or policy. Maintaining clear records regarding eligibility criteria, program objectives, decision-making processes, and any modifications made in response to federal developments may become increasingly important.
5. Monitor the Rulemaking Process: Because these are just proposed regulations at this point, institutions should closely follow further developments, including any changes before a final rule is issued, the timetable for implementation, and potential challenges to the administration's approach.
Conclusion
If you have any questions about these developments or how they may affect your school, please contact your Fisher Phillips attorney, the authors of this Insight, or any attorney on our K-12 Education Team or Higher Education Team. We will continue to monitor developments, so make sure you are subscribed to Fisher Phillips' Insight System to get the most up-to-date information.
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Related People
Sheila M. Abron
Partner
803.740.7676
sabron@fisherphillips.com
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Jennifer B. Carroll
Partner, Co-chair K-12 Institutions
954.847.4716
jcarroll@fisherphillips.com
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Shiloh Theberge
Partner, Chair Higher Education
207.477.7004
stheberge@fisherphillips.com
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William J. Wahrer
Partner
207.477.7008
bwahrer@fisherphillips.com
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Original text here: https://www.fisherphillips.com/en/insights/insights/white-house-proposal-targets-tax-exempt-status-for-private-colleges-and-schools-over-dei-concerns
[Category: BizLaw/Legal]
Fifth Circuit Rejects "Server Test" and Adopts "Transmit Requirement" for Online Copyright Claims
DALLAS, Texas, Sept. 4 [Category: BizLaw/Legal] -- Haynes Boone, a law firm, posted the following news:
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Fifth Circuit Rejects "Server Test" and Adopts "Transmit Requirement" for Online Copyright Claims
Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550, 2026 WL 2530247 (5th Cir. Aug. 27, 2026)
By Michael J. Lambert
In a case of first impression, the Fifth Circuit declined to adopt the Ninth Circuit's "Server Test" for evaluating copyright infringement of the public display right under 17 U.S.C. SS 106(5). Instead, it adopted the "transmit requirement," which asks who transmitted
... Show Full Article
DALLAS, Texas, Sept. 4 [Category: BizLaw/Legal] -- Haynes Boone, a law firm, posted the following news:
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Fifth Circuit Rejects "Server Test" and Adopts "Transmit Requirement" for Online Copyright Claims
Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550, 2026 WL 2530247 (5th Cir. Aug. 27, 2026)
By Michael J. Lambert
In a case of first impression, the Fifth Circuit declined to adopt the Ninth Circuit's "Server Test" for evaluating copyright infringement of the public display right under 17 U.S.C. SS 106(5). Instead, it adopted the "transmit requirement," which asks who transmittedthe copyrighted content and whether the transmission was permitted, rather than who stored the content on its server.
Applying that framework, the Fifth Circuit held that NewsBreak, a news aggregator website, did not directly infringe Emmerich's display right by embedding Emmerich articles because Emmerich, not NewsBreak, transmitted the embedded content to users. NewsBreak merely directed users' browsers to retrieve and display content stored on Emmerich's servers.
The Fifth Circuit noted that although its test focuses on transmission and permission, while the "Server Test" focuses on storage and "fixation," both tests "end up in a similar place: a website cannot transmit a work that it does not have."
The Fifth Circuit also held that URLs may qualify as "copyright management information" (CMI) under the Digital Millennium Copyright Act (DMCA).
Background: Emmerich Newspapers publishes over 26 local news publications in the South. Particle Media operates NewsBreak, which aggregates and embeds news articles from other sources on its website and app.
Embedding, sometimes called "in-line linking," is the practice of displaying content, such as social media posts, images or videos, on a webpage without copying or hosting the content on the webpage. Instead, HTML code in the webpage instructs a user's browser to retrieve the content from the original source and display it within the webpage.
Emmerich claimed that NewsBreak (1) infringed its public display right by including thumbnail images of Emmerich articles in its newsfeed, which users could click to view within the frame of the NewsBreak app and (2) violated the DMCA by displaying full-text articles under NewsBreak URLs instead of Emmerich's.
NewsBreak argued that embedding Emmerich's articles was permitted under the "Server Test" because the articles were not stored on its server and only linked to Emmerich's server. Under the "Server Test," a website does not directly infringe the public display right by embedding a work because it is not storing the work on its own servers; it is merely providing HTML instructions that tell a user's browser to retrieve a work stored on another server.
Media companies and content aggregators relied on the Ninth Circuit's reasoning as a legal shield for embedding. However, many decisions over the last decade have cast doubt on the viability of the "Server Test." See, e.g., Leader's Inst., LLC v. Jackson, No. 3:14-CV-3572-B, 2017 WL 5629514 (N.D. Tex. Nov. 22, 2017); Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018). Courts have found embedding can violate the display right even if it does not violate the reproduction right.
Procedural Background: The Southern District of Mississippi partially granted and partially denied both parties' motions for summary judgment. On interlocutory appeal, the Fifth Circuit addressed two certified questions: (1) whether the "Server Test" governs copyright display claims online, and (2) whether URLs can constitute CMI under the DMCA.
Fifth Circuit's Decision: Judge Stephen Higginson, joined by Judges Carolyn King and Stuart Kyle Duncan, explained that the "Server Test" rests on "weak statutory footing" and that the analysis should focus on public transmission, not merely where content is "fixed." The Court adopted the "transmit requirement," which asks (1) where the transmission of content originates and (2) whether the source permitted transmission of content. When a webpage merely provides the platform through which users receive content transmitted by another party, it is not a direct infringer.
On the facts presented, NewsBreak did not directly infringe Emmerich's display right because Emmerich's server transmitted the content and controlled whether users could receive it. The Court found that URLs may qualify as CMI in certain circumstances.
Key Takeaways:
* The "Transmit Requirement," not the "Server Test," applies in the Fifth Circuit. The Fifth Circuit's two-part framework asks: (1) where the transmission of content originates and (2) whether the source permitted transmission of content. When the copyright owner's server sends the content and controls whether users receive it, a webpage that merely directs the user's browser -or hosts a platform that receives content transmitted from the copyright owner -has not itself transmitted or displayed the work and is not a direct infringer.
* Different reasoning, similar outcomes. The Fifth Circuit wrote that its reasoning "does not create friction" with other courts and that the transmit requirement will "likely provide similar results as the Server Test in many ways." Both tests "seek to limit the broad display right in accordance with the statutory text."
* Embedding is not always permissible. The Court cautioned that its holding "should not be understood to mean that embedding will always be permissible." The Copyright Act provides other safeguards to protect a copyright owner's rights, including the right to bring direct infringement claims based on other exclusive rights. Secondary liability may be implicated when content is transmitted from an unauthorized source.
* Copyright owners can implement technical protections. The Court explained that copyright owners can use paywalls, meta tags, HTML blocking and other technical measures to prevent unauthorized embedding. These controls help establish whether a transmission was permitted and provide owners a practical way to reject requests.
* U.S. Supreme Court review is possible. The varied approaches across circuits and district courts may increase the likelihood that the Supreme Court will eventually address the proper framework for considering the public display right online.
* URLs may qualify as CMI -but there is a "high bar." The Fifth Circuit found that URLs could constitute CMI under the DMCA. However, because URLs primarily serve a functional, locational purpose, they must "clearly convey" the statutory characteristics of CMI. Domain names alone that do not identify the copyright owner, and website descriptors that do not include the title of a copyrighted work are insufficient.
Conclusion: Although it relied on a different statutory basis, the Fifth Circuit has joined the Ninth Circuit in finding that embedding, generally, does not infringe the display right. The Fifth Circuit's "transmit requirement" protects embedding copyrighted content from a direct display claim if the transmission of the copyrighted work comes from a party who has rights to the work and authorizes transmission. Embedding could still run afoul of other exclusive rights, such as the reproduction and public performance rights, under certain circumstances. Copyright owners are not without recourse -they can use technical measures to prevent their works from being transmitted.
Ultimately, embedding remains risky, especially for national media companies and content aggregators that could be sued in one of the many jurisdictions that have not adopted the "Server Test" or "transmit requirement." Until the Supreme Court sets a national standard or Congress amends the Copyright Act, this uncertainty will remain. As always, the best way to mitigate risk is to obtain written consent from a copyright holder or hyperlink to the content.
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Original text here: https://www.haynesboone.com/news/alerts/fifth-circuit-rejects-server-test-adopts-transmit-requirement-for-online-copyright-claims
