[foxpurple]

I feel like the “server test” rule OP talks about doesn’t really matter and shouldn’t. Who cares if the browser downloaded it from Instagram or the site itself. The actual result is the same. It would make sense that embedding is exactly the same as reposting, either allowed or not allowed for both.

A similar situation is that I can listen to music on my phone with Spotify legally but if I plug my phone in to a speaker system and play the music for a large group in public, it’s no longer allowed. But the music actually came from Spotify so how is it different?

Tech people always feel entitled to loopholes in laws like “this file is just a bunch of bits, how can a number be illegal??” But this thinking is not useful for a functional legal system.

[Dylan16807]

> Who cares if the browser downloaded it from Instagram or the site itself.

Can we apply this logic to downloading copyrighted material? I would love it if I could openly and legally download ROMs of all my games and archives of prime time broadcast television.

But since that's not how the legal system works, it's pretty obvious that getting something from the licensed distributor is different from getting a copy made and distributed by someone else, even if it's automated.

> But the music actually came from Spotify so how is it different?

The downloading is still legal. Spotify is still legal. The only problem is the new part you added. This is not analogous to the download vs. download comparison.

> Tech people always feel entitled to loopholes in laws

You know the test came from a highly regarded court, right?

[beowulfey]

Your spotify comparison does not really match perfectly. Playing for yourself (license permitted) vs playing for the public (license not permitted) is keeping the same content source but changing the end user.

With the photo, you are a single user browsing the photo on either website A or website B. Website A “owns” the photo, and website B has embedded it, but in both cases you are getting the photo from website A.

Since you are the same user both times, and are getting the photo from the same place both times, at first glance I would regard this as not breaking any license terms since the two parties (image host, end user) are the same, but I can accept that this is a point of contention.

[remus]

I think the license to the copyright material is the important part here. In the instagram embedding example, the uploader (i.e. copyright holder) gives IG a broad license to the content that includes giving people the right to embed the IG post on external sites.

Spotify's license is obviously not going to include permission from the artist to broadcast the work to large audiences.