Archive for the 'Intellectual Property' CategoryPage 2 of 13

Pokѐmon Go Privacy Problems: The Legalities of Mobile App Data Collection

Pokémon Go is the most popular mobile game in U.S. history. In the 24 hours after its release last week, it surpassed the daily active users numbers of every other mobile game that has ever existed—attracting nearly 21 million active users at once.  As a user myself, I can say that when the servers of the game are working properly, it’s a heck of a good time.

The game was created by Niantic and the Pokémon Company and allows users to roam the streets catching Pokémon in an augmented reality version of the real world. So successful is the game that Nintendo’s minority share in the game has boosted their market value by $11 billion in the week or so since it hit the market.

The game is free to play but features a number of available microtransactions—digital offerings within the app itself—to bring in money. However, like many mobile games, this is not the only source of revenue.  The app also collects personal information from its users, which it then strips of identifying information and sells to would-be advertisers.

In the last few days, this data collection has drawn the concern of not only users, but also U.S. Senator Al Franken. He has gone on record with serious concerns about the overreach of the privacy policy of the app—especially considering how many children it counts as users. The whole kerfuffle began in response to a blog post revealing that among the permissions you granted Niantic by creating an account was—for iPhone users using a Gmail to sign in—full access to your Google account.

The Pokѐmon Privacy Policy

The concerns, now known to be slightly alarmist, suggested that the permissions gave Niantic read/write permission for your emails, access to your Google Drive, and even the ability to pilfer your Google Wallet. This came as a heck of a shock to users, because, although the Pokѐmon Go Privacy Policy is available online, there was no indication such access was being granted when users made an account.

Since the initial accusations a few days ago, it has been established that Niantic did indeed get full access to your Google Account, however it was not quite the insidious plot that was initially insinuated. Pokemon Go

Niantic issued a statement that the overreach in permission was a mistake and the access had never been taken advantage of—an assertion that Google has verified.  What’s more, while the permissions did give Niantic potential access to a substantial amount of biographical information such as your email address and phone number, they did not have access to any emails, Google Drive, or Google Wallet.  Niantic patched the access out of the app days after the concerns were raised.

However, don’t let these developments completely send your privacy concerns over Pokѐmon Go blasting off again. If you have not yet updated the app, do so in order to patch out the access to your Google account.  What’s more, it is important to stay informed about exactly how much information you agree to share by making an account or clicking “yes” to those Terms & Conditions.  Pokѐmon Go is still collecting a staggering amount of information on you for later sale.

By using the app, you are accepting that Pokѐmon Go will collect data from you and use it in accordance with their posted privacy policy.  As it stands, they collect your Internet Protocol (IP) address, browser type, operating system, the web page you visited before going on Pokѐmon Go, anything you click on or go to while using Pokѐmon Go, how long you stay on pages you go to, search terms, and more.  Also, because Pokѐmon Go uses GPS tracking to determine where you are and thus which Pokѐmon are around you, the app collects where you go, where you left from, how long you take to get somewhere, and how long you stay at any given location.

Once this data is collected Niantic, per their privacy policy, strips identifying information from the data and pools it together to sell to advertising companies.  If the company or Pokѐmon Go is ever purchased, all this information is part of what will be purchased.

This probably seems like an incredible amount of information for strangers to know about you—and it is. Unfortunately, the only way to avoid this data collection (as with many apps) is stop using Pokѐmon Go.  What’s more, the practice is both common and perfectly legal when done carefully.

Mobile App Overreach: An Ongoing Problem

The Federal Trade Commission requires that mobile apps clearly disclose their privacy policies and what sort of information they collect. They also require that businesses give users an option to decline collection—although that can just mean letting them choose not to use an app.  Failure to do any of these things, or to comply with your own privacy policy, can give rise to an FTC charge of deceptive practices.

For example, Runkeeper is a jogging app that has recently been in hot water for tracking your location—when the app is not active. This information is then sent to advertisers.  In 2012, a social media app called Path got in trouble for taking its users’ entire address book without their knowledge.  They settled an FTC charge, paying $800,000.

Apps that seek overreaching permissions, a perfectly legal practice, unless state law says differently, when properly disclosed, are also common. In 2015, it came to light that quite a few third-party flashlight apps were asking for a lot more permissions on your smartphone than they needed.

Many of the apps has the ability to read phone status and identity, view Wi-Fi connections, modify system settings, obtain full network access, and determine your precise location via your phone’s GPS, among other permissions. This was quite an ask for an app that is primarily for finding your keys when they fall under your car seat.

It’s not surprising that people were sensitive to potential privacy issues with Pokѐmon Go given the history mobile apps have with overreaching permissions and privacy law violations. A huge portion of apps include data gathering of some kind as part of how they make their money—especially free to use apps.

Even if you trust a business with this information, that same information makes them a target for hackers. The sheer popularity of Pokѐmon Go, combined with its ability to track your location, means that it is going to be capable of nearly unprecedented data collection.  While Niantic has a solid privacy policy and has complied with FTC privacy regulations, it still can be a privacy risk given how much information is going to pass through its hands.  Don’t let this stop you from catching them all—just remember to know what you’re getting into with Pokѐmon Go and any app you use.

Net Neutrality Is Society’s Net Gain

Just last week, the Federal Appeals Court voted 2-1 to uphold the FCC’s strict new net neutrality rules in the face of a challenge from several internet service providers (ISPs) unhappy with the changes proposed.

The new FCC policy , a 183-page behemoth published in February 2015, changes the classification of ISPs to that of a public utility such as telephone services.  It also sets forth five rules that ISPs must abide by:

  1. ISPs “may not block access to legal content, applications, services, or nonharmful devices.” In other words, ISPs can’t block access of any legal user to any legal website.
  2. ISPs can’t throttle, or slow down, the delivery of any legal internet traffic.
  3. ISPs can’t make a company pay to give its data packets priority delivery or prioritize the delivery of data from their own services.
  4. ISPs can’t adopt practices which would harm consumers or people providing services on the internet.
  5. ISPs must offer transparent specifics on how they run their broadband networks.

The policy also provides for an exception for reasonable management of a broadband network. ISPs are allowed to prioritize data so as to keep things running smoothly, but cannot use this for their own commercial advantage.

Getting to this point has been a hotly contested battle. The FCC initially proposed much weaker regulations.  However, the combination of a call from President Obama for stronger rules, 4 million comments filed with the FCC, and protesters who went so far as to sit in the FCC Chairman’s driveway and demand a stronger policy, all came together to convince the FCC to pass the current policy.

Taken together, these rules are a new way of enforcing an old concept, net neutrality. The FCC has not had means of enforcing such rules until this most recent policy was published.

What is Net Neutrality?

Net neutrality is the concept that internet providers should treat all data on the internet equally—regardless of source.  All information passing through broadband networks and backbone networks should be given equal priority to the extent possible without effecting function.

For instance, text on a website can have data packets arrive in any order while video and audio must arrive in a specific order and in a timely fashion to function—net neutrality doesn’t require companies to ignore the concerns of functionality. Sorry About That

What net neutrality does is prevent blocking of content, throttling content (intentionally slowing down some content or speeds up others), and paid prioritization where some services are stuck in a “slow lane” because they do not pay a special fee. Essentially, it keeps ISPs in the business of charging users for internet connection as opposed to charging edge providers for users while the people buying internet service from them suffer.

The phrase net neutrality was first introduced in 2003 by law professor Tim Wu. Since it has had a name, it has been the subject of hot debate in the courts of both law and public opinion.

The Federal Appeals Court Ruling

The most recent rules, upheld by the Federal Appeals Court, treat both fixed and mobile ISPs as telecommunication services. This was a large part of why the Appeals Court finally upheld the FCC’s policy.  The court felt that the internet was so integral to day-to-day society that the change in classification was proper. The court’s dissenting judge, Judge Stephen Williams, argued that even though the FCC could legally reclassify broadband companies as telecommunications carriers there wasn’t enough evidence presented that society’s approach to internet had changed enough to warrant the change.

ISPs such as AT&T have seen a thorough trouncing in this case. The court accepted the rules put forth by the FCC exactly as written and then spent the remainder or their 115-page majority opinion rejecting every argument (and there were a lot of them—calling the rule overreaching and arbitrary) raised against the new net neutrality rules by both AT&T, parties who actively sought to join the case to throw more firepower at the issue, and outside parties who filed briefs seeking to be heard on the issue.

While the decision is a win for net neutrality, it will almost certainly be appealed. AT&T’s counsel was quoted saying “We have always expected this issue to be decided by the Supreme Court, and we look forward to participating in that appeal,”

How Does this Decision Effect the Average Consumer?

The FCC’s policy ensures you will not have to pay for internet that essentially only allows access to part of the internet. There is even a potential that, without these policies, consumers would end up buying internet website bundles in the same way you buy channels on cable TV—a practice that already exists in some African countries without net neutrality provisions.

Opponents of net neutrality argue that many consumers only visit a few websites, and would be happy to pay less for access to just these sites. This is the idea behind the bundled deals offered in countries such as Ghana—providing access to just a very few websites such as Facebook.  They also argue that it prevents people who wish to pay more from purchasing “fast lane” connections.  They say that some websites, especially popular streaming websites, take much more bandwidth than the average website and are thus taking advantage of ISPs.  Cable companies also bemoan the possibility of chilled investment in their networks.

What net neutrality actually does is prevent ISPs from limiting access to the internet, providing preferential treatment to internet services they provide or services that are willing to be strong-armed through bandwidth throttling into giving them a cut of their profits (as Netflix was forced to do not so long ago).  You already pay for a certain amount of bandwidth and this decision will not change that.  It just means that you will have the same access to the entirety of the internet—the premise that has allowed the internet to grow from its inception as a tiny communication network used by universities and the government into a global tool of free information and change.

A world without net neutrality certainly would benefit ISPs—allowing them to make money by slicing up the internet into packages and by creating artificial scarcity of broadband through “fast lane” internet sold to edge providers like Netflix.  In order to create a “fast lane,” providers would artificially place all other data in the slow lane.  Net neutrality prevents this, and in doing so maintains the social benefit of a free internet.  What’s more, it prevents ISPs from choking small business—unable to afford artificial premiums—out of the market.

Frankly, net neutrality is not about making huge changes to the internet—it’s about stopping them. Without the low barrier to entry provided by the internet, many of today’s biggest companies, such as Google, could never have existed.  The ruling of the Federal Appeals Court is a victory for both the consumer, and for innovation.

This ruling isn’t final; we can expect these rules to be before the Supreme Court before we’ll know whether they’re here to stay. However, this is the first step towards keeping the internet in the form we’ve all come to know and love.

3D Printing Pharmaceuticals: The Changing Legal Landscape

3D printing, perhaps more than any other invention since the internet,has the potential to completely change the face of business.  It could change how things are made and how they are bought.  3D printing has already shaken the medical profession to its core by opening up the potential for 3D printing prosthetics and even human tissue.  A few months back, the Food and Drug Administration (FDA) approved the first 3D printed drug—Spritam.

The drug is created by layering incredibly thin sheets of powdered medication using an aqueous fluid—resulting in a pill that dissolves extremely easily.  Beyond how easily it dissolves, however, the drug is currently no more efficient than a drug produced by normal mean.  The creator of the process, AppreciaPharmaceudicals, speculates that someday the process could allow for drugs customized to the person who takes them.

As 3D printing becomes more available to the public—3D printers are already available for less than $400—the implications of printing drugs become even greater.  Instead of giving prescriptions, doctors might simply 3D print your medication at their hospitals 3D printer.  They may even give you algorithms to allow you to print your pharmaceuticals in the comfort of your own home.

The Usual Suspects: Common Legal Issues with 3D Printing

This raises some clear legal issues, such as regulating the 3D printing of drugs and protecting the intellectual property of pharmaceutical companies.

Beyond restricting the sale of materials necessary to print drugs, it becomes awfully hard to regulate the quality of a drug when the patient is printing it at home with purchased materials—or even if it’s being printed at hospitals across the country.  The FDA will need to regulate not only when somebody print a drug, but also how they and be printed, on what kind of 3D printers, and more.  If private citizens are allowed to 3D print pharmaceuticals, there will obviously also need to be regulations that prevent 3D printers from printing drugs just any old time.  The potential headaches for the FDA are countless.

3D printing also has manufacturers fearing for their intellectual property rights.  Many have likened the availability of 3D printers to the digitization of music and fear the potential of a Napster for physical products.  One leaked design could undercut an entire physical product line by allowing anybody with the internet and a 3D printer to download the design and print the product for the cost of the materials.  This sort of infringement of intellectual property, much like music pirating today, would be extremely hard to trace and cut easily reach a scale that could put a manufacturer out of business. 3D Printing

There is not really a system in place to handle infringing designs posted online.  The safe harbor policies outlined in the Digital Millennium Copyright Act (DMCA) provides a well-known and important (albeit often criticized for its misuse) tool for quickly and cheaply having material which infringes copyright taken off of a website.  The DMCA has already been used to try and take down a 3D printing design at least once already—a design allowing the user to print a physical version of an optical illusion known as the Penrose Triangle.  It has also been discussed in a take down request from HBO over a 3D printing design of a phone charger based on the “Iron Throne” from their television show “Game of Thrones.”

Unfortunately, copyright is not really a good fit for 3D printing designs.  Copyright provides no or very little protection to useful articles.  The CAD files for a 3D printing design would likely fall under this umbrella in most cases.  This means that the designs may be limited to weak copyright protection or patent protection—losing the protection of the DMCA take down.  There is no similar system in place to deal with take downs of designs that might infringe a patent.  This would leave a pharmaceutical company with little recourse if an infringing design of a drug they spent years developing hit the web then spread like wildfire.

Intellectual property and regulation are legal issues which flow fairly logically from the sort of technological leap 3D printing represents.  However, an issue that a layperson might not expect is the potential issues that 3D printing could create for product liability.

Whose Product is It Anyway?

Products liability is an area of law dealing with a party trying to recover for damages caused by a defective product.  Such a claim can generally be brought by a purchaser of the product, somebody who uses the product, or a bystander injured by the product.

A product is considered defective in three situations: where the product is unsafe by design, where the manufacture of the product is defective, or where the product does not have sufficient warnings about its use.

These types of suits can be brought against the defective product’s designer, distributor, or manufacturer.  However, once 3D printing becomes readily available, who exactly is going to be the manufacturer?

Considering the risk inherent in creating pharmaceuticals, very small mistakes in design could have drastic consequences, this is an issue that is going to leave those injured by 3D printed pharmaceuticals scratching their head.  It may well be that whoever 3D prints medication is the manufacturer.  If this is the case we may never see hospitals 3D printing their own medication, despite potential saved costs and convenience, out of fear of the liability they may open themselves up to.

Law Catching Up to Science

3D printing will change the world—full stop.  As 3D printing becomes cheaper and more accessible, 3D printers have the potential to become as much a fixture in the home as a refrigerator.  As this happens, the technology around how 3D printers work will also likely see drastic strides.

Law has historically lagged behind technology; decades after its invention we still haven’t found perfect solutions for matching law to a world where the internet exists.  3D printing will test our courts once again.  The potential for advancement in medical science through inventions such as Spritam is tremendous, but so too are the legal challenges that such advancements bring with them.

This Evidence Will Self-Destruct in 10 Seconds

Self-destructing messages were once the realm of James Bond, Mission Impossible and Inspector Gadget.  However, ephemeral messaging is now extremely common.  Phone apps such as Snapchat, Cyber Dust, Tiger Talk, and Confide all allow users to send messages which disappear shortly after they are read or watched.

This has allowed users an unprecedented level of privacy in the messages they send.  Services such as Cyber Dust and Confide encrypt your messages, prevent them from having a screen shot taken of them, and (of course) destroy messages you send shortly after they are read—keeping no digital record.  Snapchat, while not as secure, still features messages which “vanish” after they are viewed.

The flip side to this privacy is an easy way to send messages that could never be used as evidence in a lawsuit. Cyber Dust was created after Mark Cuban’s experience in his insider trading lawsuit with the Securities and Exchange Commission (SEC).  Mr. Cuban felt that the SEC mischaracterized every message he sent, so he made Cyber Dust to “save a lot of time and money because nothing sent or received on Cyber Dust is discoverable.” Cyber Dust is specifically pitched as the Snapchat for “a business with a lot of lawsuits.” Snapchat itself has been accused of being used a tool to conceal insider trading.

The evidence from ephemeral messages can often be crucial to cases. Just a few weeks back, an Uber driver sued a woman over brain damage he suffered when she hit his car from behind…while she was recording herself going 107 MPH with a Snapchat speed filter.  The video that the woman took, actually recording herself hitting the Uber driver while simultaneously recording her reckless speed, would be incredible evidence in that case.  However, due to the nature Snapchat, that evidence is likely gone.

Spoliation: Getting Rid of the Evidence

There is no universal duty to maintain anything that could ever be used as evidence. Making people keep every last document in case they get sued just doesn’t make sense.  In fact, most companies have policies regulating what records they maintain and when records should be destroyed.  However, there are situations where destroying or withholding evidence can get you in trouble—this is called spoliation of evidence. Have a Nice Day!

A person who negligently or intentionally withholds or destroys relevant information that will be required in a lawsuit is liable for spoliation of evidence.  To determine whether somebody has committed spoliation, courts look to three things: 1) whether a duty to preserve evidence attached before the evidence was destroyed; 2) whether the person accused of spoliation was at least negligent in destroying the evidence; and 3) the other party was prejudiced by the destruction of the evidence.

Whether the duty to preserve evidence takes effect varies substantially between state and federal law and from state to state. The duty can take effect when you first should know you’re likely to be sued for something or when you actually receive notice of a lawsuit against you.  Once you’re under a duty to preserve evidence, you can’t destroy or hide evidence relevant to the lawsuit you know of or are expecting.

When a court finds that somebody has committed spoliation, the court can bring a number of sanctions against them.  The exact breadth of sanctions varies depending on what court you’re in, but a common sanction is applying a “negative evidentiary inference.”  This means that a jury can assume that the evidence the person destroyed would have been bad for that person.

There are exceptions for destruction of evidence as part of a routine, good faith operation of an electronic information system. However, destruction of records after you know about a lawsuit or likely lawsuit —routine or no—is often as bad faith and sanctioned.  Ephemeral data—such as information stored in RAM—has also been treated differently from normally stored electronic data.  The evidence was treated differently because it would require a Herculean effort to preserve.  However, no court has ever dealt with the obligation to preserve where the data you send self-destructs by design.

Courts have dealt with people deleting social media content in the past. They specifically ruled that deleting either Facebook posts or a Facebook account can be spoliation.  Current law leaves it unclear whether use of ephemeral messaging, like Snapchat, will leave the user in danger of spoliation sanctions.  By using Snapchat, you are creating an electronic message with the knowledge it will be destroyed.  If this is done with relevant evidence after a duty to preserve takes effect, this is arguably spoliation.

Are Snapchats Spoliation?

As it is, spoliation law isn’t really prepared to deal with ephemeral messaging on such an enormous scale. The law is just unclear enough to put people and businesses using the services in a sticky situation.  If there’s a chance that sending that Snapchat will leave you in trouble in front of a judge, using the services can become a risk not worth taking.

The idea behind sanctioning people who commit spoliation is that their destruction of evidence implies a guilty conscience. Do users have such a guilty conscience when they send relevant evidence via a means they know will self-destruct?  Cyber Dust’s pitch, promising its users messaging that can’t be used as evidence against them, certainly makes this argument at least believable.

The exception is for routine, good faith, deletion of electronic records. Where an electronic messaging service automatically deletes all messages, that deletion is certainly routine.  However, after you know of a lawsuit, is sending a message with relevant evidence via a means you know will self-destruct good faith?  The exception explicitly doesn’t apply where routine operation is used to hide evidence.

What’s more, courts have sometimes required people to prevent the deletion of otherwise routinely deleted data in order to avoid spoliation sanctions. How could a user of Snapchat or Cyber Dust preserve something that is designed to disappear?

There is a clear tension between the dangers of compromising the privacy offered by ephemeral messaging and the dangers of allowing some users of ephemeral messaging to shelter from justice by actively destroying evidence. Putting every user of ephemeral messaging services at uncertain risk of serious evidentiary sanctions is obviously not an ideal solution.  However, neither is allowing messaging services to shelter users from legal repercussions for illegal actions.

It is likely that a determination of whether sending any given ephemeral message could constitute spoliation would be highly fact specific. However, as it stands, the framework around the treatment of ephemeral messaging is so unclear as to leave parties incapable of entering a courtroom fully prepared.  It is high time that law catches up with technology. Snapchat and ephemeral messaging have been around for over half a decade.

In order to truly know whether use of ephemeral messaging services are spoliation, two things need to be firmly established. First, the exact classification of ephemeral messages.  Whether they will be treated like other types of ephemeral data or like other types of social media.  Second, whether their deletion is routine and in good faith.  Seeing as it is nigh impossible to preserve ephemeral messages, will sending them be subject to an exception to spoliation?  Until this murky area of law is cleared up, users of ephemeral messaging services will be forever left in the lurch.

140-Character Copyright: Are Tweets Subject to Copyright Protection?

Approximately 6,000 tweets are tweeted to Twitter every second.  If you thought that sentence was confusing, that’s nothing compared to hashing out whether these tweets are protected by copyright law.  Twitter’s terms and conditions certainly imply that they believe tweets merit copyright, promising to respond to notices of copyright infringement.

However, the answer to the question of tweets receiving copyright protection under U.S. law is a resounding “it depends.”  Whether your tweet will be protected depends on the content of your tweet and how your alleged infringer used your tweet.

Copyright in the U.S.

In order to receive copyright protection in the U.S., a work must be original and fixed in a tangible medium. Fixation is achieved by storing the work in any medium that can be perceived, reproduced, or otherwise communicated.  To be original, a work requires only minimal creativity.  Once a sufficiently original work is fixed, copyright attaches to that work immediately upon its fixation.  While registering a copyright provides numerous advantages in a lawsuit, it is not necessary to receive copyright protection. twitter lawyer attorney

The act of posting a tweet online certainly is sufficient to establish fixation. Originality is a very low standard, usually only requiring more than mere mechanical reproduction of a previous work.  While recitations of facts are not protectable on their own, a telephone book listing phone numbers could receive copyright protection based on an original form of sorting these numbers.

However, U.S. Courts have historically looked with disfavor on short phrases when it comes to originality.  This is the largest issue in determining whether any given tweet will receive copyright protection.

The Originality Test for Short Phrases Such as Tweets

The courts’ disfavor towards short phrases usually comes up when they are separated from a larger work. So what about the originality analysis when the short phrase is the work—such as with a tweet?

Some types of short phrases are explicitly not protected, such as titles of works or catchphrases. However, the actual length of a phrase is not determinative when it comes to originality; rather the court will look at the uniqueness of the phrase.

In Heim v. Universal Pictures, the court determined that a particularly unique short phrase could receive protection.  As example, the court gave the titular first line of Edna St. Vincent Millay’s sonnet, “Euclid alone has looked on beauty bare.”  They also noted that a line from Jabberwocky, “twas brillig and the slithy toves,” was sufficiently original as a phrase due to the inventiveness of the language.  This established that short phrases could be protected, but these short phrases require more creativity to be protected.

Short phrases, such as tweets, can be protected under U.S. copyright law. However, the higher standard for originality means that not every tweet will be protected. Tweets that merely relate facts certainly cannot receive copyright protection.  However, tweets whose brevity lends to their wit may well be protected.

Recently, Twitter took down a number of posts which copied a joke from freelance writer Olga Lexell without crediting her. Ms. Lexell’s posts are likely the exact sort that would satisfy the heightened originality test.

It is worth noting that the heightened originality test only applies to written tweets. Original photographs embedded in tweets will almost always be subject to copyright protection, be they cat pictures or selfies.

Breadth of Protection for Tweets

While the originality test for short phrases helps determine what tweets will receive protection, it does not end the discussion of the exact breadth of that protection. Copyright protects the expression of an idea, but not the idea itself.  This means that a work is protected from those who copy the expression of the underlying idea of the work; either through exact copying or the creation of a similar work where the author has access to the original.

However, copyright’s goal is not to checkmate the public out of the ability to discuss an idea. Thus, when a work’s expression cannot be extracted from the idea it represents, or that expression is necessary to a genre or concept (a concept known as scenes á faire), it will only receive protection against verbatim copying or no protection at all.

With a work as short as a tweet, the expression and the underlying idea can become very hard to separate. Thus, while verbatim copying of an original tweet will almost certainly be protected, there are many cases where that will be the full extent of their protection. There will also be many tweets so intertwined with their underlying idea as to receive no protection whatsoever.

Defenses for Twitter-Fringers

Potential tweet infringers will have several defenses available to them.  Where a party can establish that they independently created a substantially similar work to the one they are accused of infringing they receive equal copyright protection to the accusing author.  With works as short as a tweet, this defense will be much easier to prove.

Retweeting for non-commercial purposes will almost certainly not constitute infringement as it will be considered fair use, an absolute defense to infringement.  Even commercial retweeting is unlikely to be infringing as the author of a tweet almost certainly gives an implied license to others.

So What Does All This Mean?

Not every tweet is going to be protected. The heightened originality standard for short phrases in the U.S will keep many tweets from qualifying for copyright protection.  Even where a tweet is protected, that protection is often going to be fairly limited.  However, for people like Olga Lexell who make a living off of short jokes, this protection is extremely important.  They say brevity is the soul of wit, but there will have to be a lot of wit in your brevity in order to receive copyright protection on 140 characters.