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.
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.