Take the Fifth

Designated for publication

• Emmerich Newspapers, Inc. v. Particle Media, Inc., 25-60550, appeal from S.D. Miss.
  • Higginson, J. (King, Higginson, Duncan) (oral argument), copyright, Digital Millenium Copyright Act
  • Remanding from district court’s denial of DMCA claims, for reconsideration under an appropriate standard to review what constitutes protected copyright management information.
  • Emmerich Newspapers, a publisher of over 26 local news publications, sued Particle Media, the operator of the NewsBreak news aggregator app. NewsBreak displayed Emmerich articles in two ways: (1) “Framed View,” where an in-app browser embedded a live view of the article from Emmerich’s own server within a NewsBreak frame, and (2) “Full-Text View,” where a glitch on Android devices from 2019–2021 caused articles to be fully reproduced and hosted on NewsBreak’s server under NewsBreak’s URL. Emmerich claimed Framed View infringed its exclusive display right under 17 U.S.C. § 106(5) and that Particle’s removal of Emmerich’s URLs constituted removal of “copyright management information” (CMI) under the DMCA.
  • At issue on appeal was (1) whether the Ninth Circuit’s “server test” from Perfect 10, Inc. v. Amazon.com, Inc. is the proper standard for evaluating infringement of the copyright holder’s exclusive display right under 17 U.S.C. § 106(5); and (2) whether a URL can constitute CMI under 17 U.S.C. § 1202, and if so, whether its intentional removal violates the DMCA.
  • The Fifth Circuit rejected the server test as inadequately grounded in statutory text and announced a new “transmit requirement,” ultimately holding that Particle’s manner of in-line linking does not violate the Copyright Act’s display right because Particle does not itself transmit the copyrighted content. On the DMCA issue, the court held that URLs are not categorically excluded from constituting CMI but that, given their primarily functional nature, a URL would need to clearly convey the statutory characteristics to qualify—a fact-specific inquiry. The court remanded for proceedings consistent with its opinion.
  • The court found that the server test’s focus on whether content is “fixed” on the alleged infringer’s server stretches the statutory definition of “fixed” beyond what the plain language supports, because the Copyright Act only requires embodiment for more than a transitory duration—not possession on one’s own server. Instead, the court shifted focus to the word “transmit” in the statute’s definition of displaying a work “publicly,” concluding: “Simply, one cannot transmit content it does not have. We call this ‘the transmit requirement.'” The court analogized Particle to a switchboard operator: “In the same way a switchboard operator cannot connect a caller without the intended recipient picking up the phone and agreeing to be patched through, Particle cannot connect a user to Emmerich’s content without Emmerich’s transmittal of the content.”
  • The court bolstered its holding with Fifth Circuit precedent on volitional conduct from BWP Media USA, noting that when Particle “only hosts the platform that receives content when transmitted from the copyright owner, its ‘connection to the infringement’ cannot sustain a finding that it is the direct infringer.” The court also emphasized the internet’s “opt-out” architecture: copyright owners have technological tools (paywalls, meta-tags, HTML blocking) to prevent linking, and the transmit requirement places the onus on the content owner to use those protections. The court cautioned that its decision “should not be understood to mean that embedding will always be permissible,” noting that secondary liability, fair use analysis, and DMCA anti-circumvention provisions remain available.
  • On the CMI issue, the court noted that URLs primarily serve a functional locational purpose and that their variable formatting makes it difficult for them to “convey” CMI notice to the public. However, following the court’s broad approach in Energy Intelligence Group (holding PDF filenames may be CMI), it declined to categorically foreclose URLs from qualifying, stating: “we leave open the possibility that certain URLs could possess the hallmarks of CMI,” while identifying several factors for district courts to evaluate. The court also left open whether URL removal or alteration violates the DMCA, noting “workability concerns abound” and that factual development is necessary.

• United States v. West, 25-11227, appeal from N.D. Tex.
  • per curiam (Southwick, Higginson, Oldham) (no oral argument), Higginson, J., concurring, Oldham, J., dissenting; criminal, guilty plea
  • Carrying with case government’s motion to dismiss appeal based on appeal waiver, and granting appellee an extension to file appellee brief.
  • Kyle Lamar West pleaded guilty to violent sexual assault of a 10-year-old and a 3-year-old and to producing child pornography; his plea agreement included an appeal waiver. On his first appeal—which the Fifth Circuit allowed despite the waiver—the court found the district court’s restitution order inadequate under Paroline v. United States, and remanded. On remand, the district court increased restitution from $6,000 to $372,200. West then filed a second appeal, this time arguing his plea agreement contained an “implied covenant of good faith and fair dealing” that was violated. The government moved to dismiss the second appeal based on the appeal waiver.
  • At issue on appeal was whether the government’s motion to dismiss the appeal based on the appeal waiver should be granted or carried with the case for full briefing, particularly in light of the Supreme Court’s intervening decision in Hunter v. United States, 146 S. Ct. 1702 (2026), which confirmed that appeal waivers are unenforceable when they would result in a miscarriage of justice.
  • The per curiam order simply carried the motion to dismiss for resolution after full adversarial briefing, without ruling on the merits.
  • Judge Higginson, concurring, wrote separately to note that the Supreme Court’s decision in Hunter confirmed “an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice,” vindicating the panel’s earlier refusal to enforce the waiver. He observed that the appellate correction led to a “6,200% increase in restitution the district court determined the law requires West to pay his child victim,” and noted the interim order “does not limit whether and how that review proceeds.”
  • Judge Oldham dissented sharply, calling it “a travesty that our court refused to enforce the appeal waiver” and arguing the majority “needlessly prolongs multi-year appellate proceedings that never should have been allowed in the first place.” He characterized the first appeal’s result—finding the sentence “too high by being too low”—with the quip: “Lewis Carroll would blush.” On the second appeal, he called it “frivolous,” mocking the theory of “penumbras, formed by emanations, that included an unwritten yet ‘implied covenant of good faith and fair dealing.'” He concluded: “The least that the People of the United States could get from this deal is finality. Justice delayed is justice denied.”

Unpublished decisions

• United States v. Balderas-Garcia, 25-50709, appeal from W.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), criminal, sentencing
  • Affirming 42-month sentence for illegal reentry.
  • At issue on appeal was whether an upward variance from the advisory guidelines range resulting in a 42-month sentence for illegal reentry (8 U.S.C. § 1326) was substantively unreasonable.
  • Reviewing for plain error because the challenge was raised for the first time on appeal, the court concluded Balderas-Garcia failed to show the district court committed a clear error of judgment in balancing the § 3553(a) sentencing factors or that the sentence was substantively unreasonable.

• Smith v. Terry (In re Salubrio, L.L.C.), 26-50148, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), bankruptcy
  • Affirming denial of motion to set aside various orders for fraud on the court.
  • At issue on appeal was whether the bankruptcy court erred in denying pro se appellant Dr. Douglas Smith’s motion to set aside various orders for alleged fraud upon the court, and the validity of a “gatekeeper order” requiring Smith to obtain court approval before filing future litigation.
  • The court held that Smith—a pro se, serial litigant—forfeited most of his arguments due to inadequate appellate briefing, failing to cite relevant federal authority. His “unclean hands” challenge to the Chapter 7 Trustee was forfeited for the same reason. The court reiterated that the bankruptcy court’s gatekeeper order was an “appropriate exercise of the bankruptcy court’s inherent power” under 11 U.S.C. § 105.

• United States v. Ugarte, 26-10177, appeal from N.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Link, 26-10646, c/w 26-10673, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, pretrial detention
  • Affirming denial of pretrial release.
  • At issue on appeal was whether the district court erred in denying defendant Joshua Robert Link’s motion for revocation of its pretrial detention order and his alternative request for temporary release under 18 U.S.C. § 3142(i) pending trial on charges of conspiracy to commit wire fraud, wire fraud, and money laundering.
  • The evidence supported the district court’s conclusion that no condition or combination of conditions would reasonably assure Link’s appearance at future proceedings, given the nature of the offenses, Link’s history, and his actual flight from the United States after learning of the evidence against him. The court also found no abuse of discretion in denying temporary release under § 3142(i).

• United States v. Abilgaziyev, 25-40699, appeal from S.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, appellate jurisdiction
  • Dismissing appeal due to pending motion for new trial and lack of appeal of magistrate judgment first to the district court.
  • At issue on appeal were jurisdictional defects in the appeal: (1) whether a pending motion for new trial rendered the notice of appeal ineffective, and (2) whether the court had appellate jurisdiction where the defendant failed to first appeal the magistrate judge’s judgment to the district court.
  • The court found two jurisdictional impediments: the pending motion for new trial made the notice of appeal ineffective, and more fundamentally, because Abilgaziyev never appealed the magistrate judge’s judgment to the district court, the Fifth Circuit lacked appellate jurisdiction. Counsel’s motion to withdraw was denied as moot.

• United States v. Love, 26-60023, appeal from S.D. Miss.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming sentence on firearm charge.
  • At issue on appeal was whether the district court erred in applying a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(7)(B) for using or possessing a firearm in connection with another felony offense (aggravated assault) following a jury-trial conviction for felon-in-possession.
  • The court found the district court’s factual finding—that Love used the firearm during an aggravated assault—was plausible in light of sentencing testimony about the victim’s description of the assault and the evidence of her injuries.

• United States v. Zuniga-Sagrero, 26-20088, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
  • Affirming in part and dismissing in part appeal from denial of motion for expedited removal.
  • At issue on appeal was (1) whether the appellant abandoned the only cognizable issue on appeal by failing to brief any challenge to the January 22, 2026 order denying her motion for expedited removal, and (2) whether the court had jurisdiction over the separate November 7, 2025 order absent a timely notice of appeal.
  • The court held that Zuniga-Sagrero abandoned her challenge to the January 2026 order by failing to address it in her appellate brief. The court dismissed for lack of jurisdiction her challenge to the November 2025 order because no notice of appeal was filed from that order.

• Outsourcing Facilities Association v. FDA (Novo Nordisk), 25-10758, appeal from N.D. Tex.
  • per curiam (Richman, Duncan, Oldham) (oral argument), administrative law
  • Affirming judgment for agency on APA challenge to removal of drugs from drug shortage list.
  • At issue on appeal was whether the FDA violated the APA by (1) removing Ozempic and Wegovy (semaglutide injection products) from its drug shortage list without notice-and-comment rulemaking, and (2) acting arbitrarily and capriciously in determining the semaglutide shortage had resolved.
  • The court declined to decide whether the FDA erred in not using notice-and-comment procedures because any such error was harmless—the Compounders had actual notice of the FDA’s ongoing evaluation and submitted at least 34 separate comments over a period exceeding the APA’s minimum 30-day comment window, and they identified no additional information they would have submitted had formal notice been published.
  • On arbitrary-and-capricious review, the court held the FDA adequately disclosed its analytical parameters (time period, supply and demand measures), reasonably relied on Novo Nordisk’s business data over less probative evidence (undated screenshots, form letters, news articles, and blog posts), and appropriately addressed wholesaler overordering, transitional demand from compounded products, and the CEO’s public comments about global GLP-1 supply.
  • The court also addressed the level of deference owed to an agency’s characterization of its own action—noting potential tension between City of Arlington (“significant deference”) and W & T Offshore (“minimal” deference)—but concluded the issue was unnecessary to resolve because harmless error applied regardless.

• Outsourcing Facilities Association v. FDA (Eli Lilly), 25-10600, appeal from N.D. Tex.
  • per curiam (Richman, Duncan, Oldham) (oral argument), administrative law
  • Affirming judgment for agency on APA challenge to removal of drugs from drug shortage list, in companion case to 25-10758.
  • At issue on appeal was whether the FDA violated the APA by (1) removing Mounjaro and Zepbound (tirzepatide injection products) from its drug shortage list without notice-and-comment rulemaking, and (2) rendering an arbitrary and capricious shortage determination.
  • The court assumed without deciding that the FDA erred by not subjecting its Delisting Action to notice-and-comment procedures but concluded any such error was harmless because the Compounders had actual notice (including public website postings and the FDA’s motion in court identifying its authority and inviting submissions), submitted numerous comments over a period essentially doubling the 30-day APA minimum, and could not identify any additional evidence they would have provided had a formal Federal Register notice issued.
  • On arbitrary-and-capricious review, the court rejected all four challenges: (a) The FDA disclosed its time-period parameters—data from January 2024 through projected March 2025—consistent with the statutory mandate to maintain an “up-to-date” drug shortage list. (b) Eli Lilly’s cumulative and biweekly data formats were not arbitrary; surplus from one month logically carries over into the next given tirzepatide’s 24-month shelf life. (c) The Compounders’ attempts to show Eli Lilly’s own data reflected shortages relied on flawed conversions of cumulative data and incomplete comparisons between tables. (d) The FDA reasonably weighed screenshot evidence, survey data, news coverage, and compounded-drug sales as less probative than Eli Lilly’s comprehensive business data, and it properly treated demand for compounded products as relevant only to the extent such demand would transfer to Eli Lilly’s approved products post-delisting.
  • The court also provided a detailed discussion of the rulemaking-versus-adjudication framework under the APA, noting the FDA invoked its adjudicatory power under 5 U.S.C. § 554(e) and citing City of Arlington, American Airlines, and Texas v. United States as precedent for treating declaratory orders issued under § 554(e) as informal.