Vass v. Volvo Trucks North America, Inc.
Vassv.Volvo Trucks North America, Inc.
Robert B. Allen, Philip J. Combs, Allen Guthrie Mchugh Thomas, Charleston, WV, for Plaintiff.
Gretchen M. Callas, Christopher D. Pence, Jackson Kelly, Charleston, WV, for Defendant.
James M. Cagle, Charleston, WV, James Mick Kessel, Stout Howard Billy Seli, Richmond, VA, for Interested Party.
Before the court is a motion to dismiss pursuant to Rule 12(b)(6), brought by defendants Volvo Trucks North America and Volvo Logistics North America (collectively "Volvo") (Doc. No. 10). Volvo previously moved to dismiss on grounds of lack of personal jurisdiction and improper service (Doc. No. 6) and to transfer venue to the Western District of Virginia (Doc. No. 8). Judge Haden denied these prior motions on January 16, 2004, and transferred this action to this court on the same date (Doc. No. 23). Volvo's motion was filed on November 26, 2003; the plaintiff filed a response on December 15, 2003 (Doc. No. 14), and Volvo filed its reply on December 23, 2003 (Doc. No. 18). Accordingly, this matter is ripe for adjudication.
Volvo argues that the plaintiff's complaint fails to state a claim under the West Virginia wrongful death statute, W. Va. Code § 55-7-5, because Mr. Vass was injured within the geographic confines of Virginia as a result of conduct (the negligent loading of a truck) that also occurred within the geographic confines of Virginia. The plaintiff argues that the public policy exception to choice-of-law analysis requires application of the West Virginia statute here. Volvo responds that Virginialaw is clearly applicable to these claims and that, in any event, public policy requires only that Virginia's contributory negligence rule not be applied to foreclose recovery by the plaintiff, not that the plaintiff be permitted to proceed under the West Virginia statute. The parties' arguments raise a close question, and the court has determined that dismissal pursuant to Rule 12(b)(6) is proper.
Because this matter is before the court on Volvo's motion to dismiss, the court construes the facts in the light most favorable to the plaintiff. On January 8, 2002, Michael D. Vass, a truck driver, left his home in Lindside, West Virginia, and traveled to Dublin, Virginia. In Dublin, Mr. Vass picked up a load of parts from one Volvo facility and transported those parts by truck to a Volvo storage facility located a few miles away, also in the vicinity of Dublin. Volvo employees negligently loaded Mr. Vass's truck. As a result, when Mr. Vass opened the door to the truck, the cargo fell and fatally injured him. Thereafter, Sylvia Claudette Vass brought this action in the Circuit Court of Kanawha County on Mr. Vass's behalf, seeking relief pursuant to the West Virginia wrongful death statute. Volvo removed the action to this court on October 28, 2003.
conclusion. See Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 326 (4th Cir. 2001). Although pleading requirements are liberal, "more detail often is required than the bald statement by plaintiff that he has a valid claim of some type against defendant." Id. (quoting 5A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).
A federal district court sitting in diversity applies the choice-of-law rules of its forum state. Wells v. Liddy, 186 F.3d 505, 521 (4th Cir. 1999). West Virginia law applies the lex loci delicti ("place of the wrong") principle to law conflicts that present in tort cases. See Paul v. National Life, 352 S.E.2d 550, 555 (W.Va. 1986). However, choice-of-law analysis "does not require the application of the substantive law of a foreign state when that law contravenes the public policy of this State." Id. at 556.
In a wrongful death action pending in WV against a trucking company principally located in Ohio, which is based upon a claim that the trucking company negligently hired a driver who shot and killed a driver from West Virginia while in Maryland, does the substantive law of Maryland apply to the wrongful death action, including the defenses of contributory negligence and assumption of the risk?
Id. at 281. The court's response was, "Answer: West Virginia." Id. at 283.
It is clear that West Virginia law prevents the application of Virginia's contributory negligence rule in the case at bar. What is unclear is whether public policy requires the court to apply only West Virginia's comparative negligence rule, or whether the court should apply West Virginia substantive law to the plaintiff's entire claim. If only the comparative negligence rule applies, then the plaintiff has failed to state a claim upon which relief may be granted, as the substantive law of the place of wrong alleged by the plaintiff (Virginia) must otherwise apply to the resolution of this case. Obviously, the plaintiff has stated a valid claim if the court can grant relief under the West Virginia statute.
The court takes judicial notice that the contributory negligence rule is still enforced by Virginia courts. See, e.g., Ponirakis v. Choi, 546 S.E.2d 707, 710-11 (Va. 2001).
The precise import of Mills to these facts is somewhat unclear. The court wrote that West Virginia law should govern the claim "sub judice" and styled this ruling a "holding." See Mills, 510 S.E.2d at 283. Yet in the next sentence of its decision, the court wrote simply that West Virginia courts should not "enforce" contributory negligence laws from other jurisdictions. See id. Because the court began its analysis by noting that the substantive distinction between the application of West Virginia and Maryland law was the defense of contributory negligence, there is an inference that the decision only reached the issue of whether the contributory negligence defense should apply. See Woodrum v. Johnson, 559 S.E.2d 908, 912 (W.Va. 2001) ("When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound." (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996)). Under such a view, the plaintiff's complaint would fail to state a claim, as the law of Virginia clearly applies to the plaintiff's allegations under this state's lex loci analysis.
Moreover, such a view would be consistent with prior decisions from the West Virginia high court. In Chase v. Greyhound Lines, Inc. the decedent was involved in a fatal car accident in Pennsylvania that was caused by the negligence of her son. The plaintiff brought suit in West Virginia.See Chase v. Greyhound Lines, Inc., 195 S.E.2d 810, 812 (W.Va. 1973),overruled on other grounds, Lee v. Comer, 224 S.E.2d 721 (W.Va. 1976). The court noted at the outset that Pennsylvania law should govern the plaintiff's claim because the plaintiff's death had occurred within that state. See id. at 813 ("The wrongful death complained of in this action occurred in Pennsylvania. The wrongful death statutes of that Commonwealth, therefore, govern the substantive law applicable to this case unless barred by our public policy."). The deceased plaintiff's husband had brought suit against the son on behalf of himself and on behalf of the family's children. See id. at 814. The law of Pennsylvania, unlike that of West Virginia (at the time), did not provide immunity from suits brought between parents and minor children. See id. Thus, the court had to decide whether the father could proceed against the minor son on a claim grounded in the foreign state's law, even though the public policy of West Virginia was to not allow claims between parents and unemancipated minors. See id. at 815.
Three years later, in 1976, the Supreme Court of Appeals partially overruled Chase and abrogated parental immunity. See Lee v. Comer, 224 S.E.2d 721, 724 (W.Va. 1976).
The Chase court ruled that the father could maintain his action in West Virginia, but that he could only do so for the benefit of the family's children. See id. at 818. The father could not himself recover because suits between parents and children violated this state's public policy.See id. Critically, the court then analyzed whether the plaintiff could recover funeral expenses. See id. Although West Virginia allowed for the recovery of such expenses as damages, Pennsylvania law limited funeral expenses to the beneficiary who had paid them or was liable for them. See id. The father had paid the expenses, so under Pennsylvania law only the father could recover for them; at the same time, West Virginia law prevented a suit brought on behalf of the father. See id. The court ruled that the plaintiff could not recover the expenses: under the substantive law of Pennsylvania only the father had a right to recover, and that right could not be entertained in a West Virginia court. See id. at 819. The court's rationale was thus that the law of the place of the wrong governed the right to recover, but that any foreign law that violated West Virginia public policy would not be applied.
Under this reasoning, the plaintiff's complaint fails to state a claim because the law of the place of the wrong alleged by the plaintiff (Virginia) must necessarily govern the plaintiff's claim. The limitation counseled by Chase would apply to make elements of Virginia law, such as the contributory negligence defense, inapplicable if they violate West Virginia public policy. Had the Chase court intended to simply substitute West Virginia law for dissimilar Pennsylvania law because of public policy differences in other areas, then it would have relied upon the West Virginia wrongful death statute to allow the plaintiffs to recover the funeral expenses. Instead, the Chase court allowed only the recovery that was granted by Pennsylvania law, and limited Pennsylvania law to comport with West Virginia public policy. Yet, the Mills decision appears to command the application of the West Virginia wrongful death statutes to the case "sub judice."
The immunity from action between parent and child does not extend to and bar an action for wrongful death instituted in the courts of this State by a parent, as the personal representative of his deceased spouse, against his unemancipated child to recover damages only in behalf of other children of his deceased spouse, siblings of the defendant, where the death occurred in another state which by statute created a cause of action accruing directly to the benefit of such children of the deceased, and where under the law of the state in which the cause of action arose it is maintainable although the defendant child is barred from participation in any recovery of damages; the personal representative parent, however, although a member of the class of beneficiaries designated by statute in the state in which the cause of action arose as being entitled to recover damages in a wrongful death action, is barred from participation in any recovery by the public policy of this state which prohibits actions between parent and child.
Chase v. Greyhound Lines, Inc., 195 S.E.2d 810, 811 (W.Va. 1973 (syllabus point 3), overruled on other grounds. Lee v. Comer, 224 S.E.2d 721 (W.Va. 1976). The Supreme Court of Appeals has counseled that any new points of law it pronounces will be carried in syllabus points. See Walker v. Doe, 558 S.E.2d 290, 291 (W.Va. 2001) (syllabus point 2); accord State ex rel. Med. Assurance of W. Va., Inc. v. Recht, 583 S.E.2d 80, 94 (W.Va. 2003).
Therefore, although there is language in the Mills opinion that could be read to command the application of West Virginia law to the plaintiff's claims in their entirety, this language is appropriately regarded as dicta. The binding holding of Mills is that a foreign contributory negligence law will not be enforced, and this is especially apparent in light of the fact that the Mills court began its discussion by noting that the "operative distinction" between the two states' laws was the application of the contributory negligence rule. See Mills, 510 S.E.2d at 282. Although Chase was subsequently overturned as to its parent-child immunity holding, see Lee v. Comer, 224 S.E.2d 721, 724 (W.Va. 1976), the portion of the decision providing that the law of the place of the wrong governs the plaintiff's right of recovery, subject to limitations drawing from this state's public policy, remains good law. When the two cases are read together, the result is that Virginia law should govern the plaintiff's wrongful death claim, but that Virginia's contributory negligence rule should not be applied in order to comport with West Virginia's public policy in favor of comparative fault.
This approach is consistent with other courts' treatment of contributory negligence laws that violate their own public policy. For example, in 1977 the Supreme Court of Arkansas considered whether the contributory negligence defense should apply to a suit brought in Arkansas on account of an accident that had occurred in Missouri. See Wallis v. Mrs. Smith's Pie Co., 550 S.W.2d 453, 455 (Ark. 1977). Missouri law still applied the contributory negligence defense, but Arkansas law applied a comparative fault rule. See id. at 455-56. After noting that thelex loci rule controlled choice-of-law analysis in Arkansas (as in West Virginia), see id. at 457, the court determined that applying Missouri's contributory negligence bar would violate Arkansas public policy, see id. at 458. The court wrote: "We therefore find this State has a predominate interest in applying its comparative fault statutes to its own citizens and those who seek relief in its courts. For equally compelling reasons we find Missouri rules of the road are applicable to questions of alleged negligence in the actual driving of the vehicle." Id. (internal citations omitted). That is, the law of the place of the wrong (Missouri) would govern the plaintiff's claim generally, but the specific element of Missouri law that violated forum public policy (the contributory negligence bar) would not be applied in favor of forum law. Another case providing similar reasoning isJudge Trucking Co. v. Estate of Cooper, Nos. 92C-03-041, 93C-04-023, 1994 WL 164519 (Del.Super.Ct. Apr. 14, 1994).
The court thus concludes that the correct application of West Virginia choice-of-law principles is that the law of the place of the wrong (Virginia) controls the plaintiff's claim, subject to West Virginia's comparative fault rule.
For the reasons detailed in this opinion, the court concludes that the plaintiff's avered claim under the West Virginia wrongful death statute fails as a matter of law. Accordingly, defendant Volvo's motion to dismiss pursuant to Rule 12(b)(6) is hereby GRANTED. Having recently granted the plaintiff leave to file an amended complaint and having granted the defendants leave to file a third-party complaint, the court further grants the plaintiff leave to amend the complaint to state a wrongful death claim pursuant to Virginia law. Accordingly, the plaintiff shall have thirty (30) days from the date of this order to file an amended complaint.
The Clerk is directed to send copies of this Order to all counsel of record.


All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.
Source Note: Reenactment of act of April 18, 1949 (P.L. 512), § 601 (20 P.S. § 320.601), as modified by Moyer V. Phillips, 341 A.2d 441, 462 Pa. 395, 77 A.L.R.3d 1339 (1975).
1807, April 7, P.L. 155, 4 Sm.L. 398, § 4 (12 P.S. § 11).
1807, April 13, P.L. 296, 4 Sm.L. 476, § 3 (12 P.S. § 12).
1818, March 24, P.L. 285, 7 Sm.L. 131, § 7 (12 P.S. § 14).
1848, April 11, P.L. 536, § 3 (12 P.S. § 805).
1861, March 22, P.L. 186, § 1 (12 P.S. § 16).
1893, June 8, P.L. 345, §§ 24, 25 (12 P.S. §§ 1926, 1972).
1949, April 18, P.L. 512, art. VI, § 601 (20 P.S. § 320.601).
1972, Dec. 2, P.L. 1280, No. 284, § 505 (70 P.S. § 1-505).


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Ricotta and truffle pearl, red beet, powdered rosemary oil.
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Cite as Ballardini R.M., Lindman J. & Flores Ituarte I., "Co-creation, commercialization and intellectual property - challenges with 3D printing", in European Journal of Law and Technology, Vol 7, No 3, 2016.
3D printing (3DP) has high transformative potential as it is not only distinctive from other existing manufacturing techniques but also presents several previously unimaginable advantages. Its digital nature coupled with the availability of internet access offers the potential for radical decentralization of industrial production, as well as collaborative design of the artefacts produced. This important characteristic is advantageous not only to end users but also to commercial companies that are currently attempting to introduce this technique for manufacturing final products. One important advantage that companies could gain from this model is the possibility to engage in co-creation activities with the user community, and in this way benefiting from users’ contributions.
This article begins by presenting a well-studied example of an industry that relies upon co-creation models, the software industry, in order to highlight the possible legal challenges with a particular focus on intellectual property rights. The paper then goes on to investigate the potential IP implications of co-creation for companies operating in industry fields that heavily rely (or are planning to heavily rely) upon 3DP technology. These questions are addressed from multiple perspectives based on theoretical argumentation and empirical research (in the form of case study research) with relevant stakeholders. The paper concludes with some recommendations as to how companies could possibly engage in co-creation with the user community in the field of 3DP.
Additive manufacturing (AM), more colloquially known as 3D printing (3DP), is a method of producing physical objects from digital 3D-model data through a layer-upon-layer process. As a manufacturing technique, it is the opposite of subtractive manufacturing methods, such as machining, which typically involve astronomical up-front costs and are dominated by economies of scale (Gibson I et al., 2010). 3DP has high transformative potential as it is not only distinguished from other existing manufacturing techniques but also presents several previously unimaginable advantages . Petrick and Simpson (2013) argue that 3DP processes represent a change from 'economies of scale' to 'economies of one', allowing a paradigm change towards mass-customization. Product cost per part in 3DP basically remains constant and allows fully customizable objects to be produced including highly complicated structures, as well as other advantages, such as manufacturing on demand and reduction of the environmental footprint of manufacturing activities.
Another disruptive element of this technology is its relation to digital artefacts. The 3DP process begins with a digital blueprint, i.e. the digital or virtual representation of a physical object (CAD file), that is created either by using modelling software or by 3D scanning an existing physical object. This digital element of 3DP easily allows and supports distributed 'customization' of products, empowering end users to start from a digital CAD file and tailor it in accordance with their needs and preferences. In addition, the digital element coupled with the availability of internet access offers perspectives of radical decentralization of industrial production, as well as design of the artefacts produced. Common printing examples include printing out individual toys, jewellery items, and specific spare parts for home appliances.
Considering these key advantages of 3DP technology, it does not come as a surprise that several online platforms connecting users  over the Internet have already emerged in different countries. For instance, platforms such as Cult3D , PinShape , Thingiverse  and Sculpteo  act as CAD file repositories, permitting internet users to access, download, modify, redistribute, and ultimately print out the physical objects digitally represented in the CAD.
This important characteristic is advantageous not only to end users but also to commercial companies. In fact, although 3DP has long been used only for prototyping (Bogue, 2013), the current trend is to attempt to introduce the technique for manufacturing final products. Indeed, one important advantage that companies could gain from the above-described configuration is the possibility to engage in co-creation activities with the user community, that way benefiting from users' contributions. In this article we refer to 'co-creation' in terms of companies co-creating with the users' community (Prahalad CK and Ramaswamy V, 2004). Specifically, we focus on situations where companies incorporate both open source licensed (e.g. produced by the users' community) and proprietary licensed products (e.g. produced internally by the company or licensed in from third parties) into the final proprietary licensed product they release to the market. In recent years the topic of 'co-creation' (as understood in this paper) has attracted the attention of the scholarly community, raising several managerial and theoretical issues (Söderberg J, 2013; Raasch C et al., 2009). Yet, to date, several questions related to the management and efficiency of this model of collaboration remain open. Among these uncertainties, issues related to intellectual property rights (IPRs) are of cornerstone importance.
This paper aims to shed light on the potential IP related challenges that manufacturing companies might face if intending to commercialise products by building upon digital CAD files downloaded from available open hardware repositories (or otherwise created by the user community). We begin by generally highlighting the advantages, as well as the IP related risks, associated with co-creation models for companies. We then present a well-studied example of an industry that relies upon co-creation models, namely the software industry, in order to highlight the possible IPR risks involved, as well as the coping mechanisms that that industry has implemented in order to navigate those risks and, this way, set the basis for a parallel discussion to the 3DP field. Also in the case of software, we focus on situations where companies incorporate both open source licensed and proprietary licensed code into the final proprietary software they release to the market. After this, the paper goes on to investigate the potential IP implications of these types of co-creation innovation models for companies operating in industry fields that heavily rely (or are planning to heavily rely) upon 3DP technology. In this part, the questions are addressed from multiple perspectives, based on theoretical argumentation and on empirical research (in the form of case study research) with relevant stakeholders. Based on the findings of the empirical analysis, the paper concludes with some recommendations as to how companies could possibly engage in co-creation with the user community in the field of 3DP, highlighting areas where future research is necessary.
Even though the challenges related to IPRs and 3DP are generally global and not limited to any specific jurisdiction, the law clearly applies and is interpreted differently based on national or regional rules. Here we will refer to IP laws and principles stemming from the European systems, whereas going into detail of possible different interpretations of European law at national level would not be relevant for the purpose of this study.
In recent years, discussions around open types of innovation models have increasingly gained the attention of academics and industries. Traditionally, research and development in firms has been a secret, closed, linear process that engages internal experts within company walls (Gassmann O, 2006)). Increasingly, different R&D activities have been opened up and distributed. Users and other external stakeholders are increasingly involved in these industrial activities (Benkler Y, 2006). Opening up development processes paves the way for different involvement of external stakeholders (Chesbrough H, 2003), users (Von Hippel E, 2005) or crowds (Kleemann F et al., 2008; Kozinets R et al., 2008). Benkler Y (2006a) has even suggested that in some areas of production, self-organising commons-based peer production may disrupt traditional industries (i.e. parts of journalism and printing of encyclopaedias).
Traditional R&D-oriented companies will likely populate the business landscape for the foreseeable future and therefore ways that enable more open approaches that are still in conjunction with more traditional companies are in high demand. These more open development structures include, for example, open innovation, co-creation and co-production. 'Open innovation' means an open process where an idea or invention is translated into something useful and valuable. 'Co-creation' (of value) means taking the customer as an integral part of the value production process and has roots in the earlier notion of co-production (Vargo S et al., 2004). In traditional manufacturing consumers and producers are seen as separated entities, in order to guarantee manufacturing efficiency. However, currently practitioners and academics view production of value as a continuous goal, where division into production and consumption breaks down. The most relevant academic definition of co-creation for the purpose of this paper is the one according to which co-creation is ' the joint creation of value by the company and the customer, allowing the customer to co-construct the service experience to suit their context' (Prahalad CK and Ramaswamy V, 2004, p. 8). In traditional manufacturing consumers and producers are seen as separated entities, in order to guarantee manufacturing efficiency. However, currently practitioners and academics view production of value as a continuous goal, where division into production and consumption breaks down.
The underlying assumption is that taking customers closer to value production helps to better address customer needs, provides relevant perspectives and novel knowledge. This engagement requires an understanding of the different motivations users might have for participation. One lesson learned is that IPR arrangements (including licensing activities) have a role to play in these motivations: involved users expect to have some rights to the process and end-product of value produced.
Farrell and Shapiro (2004) argue that, traditionally, two separate schools of thought concern IPR strategies in general: 'incentives' type of strategy ('strong' IPR protection and enforcement strategy) and 'openness' types of strategy ('weak' IPR protection and enforcement strategy). Those who belong to the 'incentives' (or 'closed') school argue that creators are only likely to continue contributing in the future if they can capture sufficient value, so that strong IPR protection is necessary. When this strategy is chosen, Henkel and Baldwin (2009) conclude that the project can be divided into several parts, enabling contributors to participate in one portion of the project only. In this case, the different parts of the project will be protected by different IPRs.
Clearly, the types of model and IPR strategy work differently depending on the industrial field concerned. For example, in drug research and development the costs of closed-model research activities are covered via strong IP protection and sales of drug products over their full lifetime. It is important to note, however, that this modularity of IP is likely to increase the cost of design, will add legal costs, and may imply loss of performance. Areas such as the software industry, instead, rely on both 'closed' and 'open' innovation models, usually mixed together (including a form of 'co-creation'). In these types of 'mix' settings, managing IPRs is perhaps one of the major challenges for companies. Indeed, careful planning of IPR strategies is essential for any company that plans to engage in these types of co-creation.
In the following parts we investigate further how for-profit companies and open-source communities co-exist and co-create. We focus on models where companies commercialise under proprietary licenses products that are built upon combining open source and proprietary software products and we highlight risks and coping mechanisms in terms of IPRs.
As previously mentioned, the software industry is probably the most well-established example of an industry that partially relies upon co-creation types of model for commercial purposes. Nowadays commercial software companies include several elements of open source software  in their proprietary software, that way making open source software elements an issue to be considered as a part of forming a software company's innovation strategy.
In software, the open source development model differs from the traditional 'closed' innovation type of model in several respects. From a development structure perspective, while the proprietary model favours a centralised, closed type of development with products fully 'built in-house', the open source model makes use of collaborative developing structures that extend beyond the boundaries of a single firm. As such, open source projects are controlled by a community of stakeholders and the software is usually developed by a group of self-organised collaborators.
Other major differences relate to the policy treatment of the software source code, as well as the relationship to IPRs and the licensing schemes used. In particular, while in proprietary models the developing firm usually owns and retains all the rights over the software it produces, in 'open' source models the licences include conditions that allow licensees to 'use' the code for several purposes. For example, FLOSS licences generally allow users to 'use, modify, distribute, and re-distribute' the original source code.  Each FLOSS licence is based on copyright law. Specifically, FLOSS licenses set the relationship between the copyright holder and the users. Notwithstanding these common characteristics, FLOSS licenses differ in several respects. One of the most important distinctions lies in the extent the license allows commercial exploitation, especially with respect to the possibility to combine the FLOSS code with proprietary code. For instance, the essential nature of the GNU General Public License (GPL), which is the most commonly used FLOSS license, is enshrined in a requirement called 'copyleft'. According to the GPL, if a piece of code that in whole or in part contains or is derived from a FLOSS code or any part thereof is distributed or published together with other (proprietary) software, the source code of the entire final product must be made available and licensed under the terms of the GPL.  In other words, if a company combines GPL software with its own developed proprietary software, the question comes down to whether or not the result is published 'as a whole work'. If the proprietary code that a company combines with the GPL code is apparent and recognizable as an independent and separate work, that code might be able to remain free of the GPL 'taint' (also called the 'contamination' risk or 'reciprocity' of FLOSS licences). On the other hand, copyleft-types of licenses are not uniform in this aspect. For example the Lesser General Public License (LGPL)  and the Mozilla Public License (MPL)  are more permissive than the GPL. Finally, licenses like the BSD license (and, generally, the so called 'academic' licenses) allow more commercial exploitation and more flexibility in combining open source with proprietary software (Välimäki M, 2005). It is important to keep all this in mind, because these differences might be crucial for firms attempting to commercialise under proprietary licenses products that are built incorporating FLOSS and proprietary licensed software.
In addition, open source has increasingly been used in hierarchical settings (so called OSS 2.0) in organizations (Fitzgerald B, 2006) where the actual source code may remain unlicensed (i.e. protected by IPRs), may be provided with a proprietary licence or maybe used only internally. In these cases, the licence is not the primary tool regulating to use or distribution of the software. Currently, through the increasing use of tools such as GitHub and open source based cloud solutions, licences are eroded even more. According to the Open Source Initiative (OSI) definition, Open Source is "a development method for software that harnesses the power of distributed peer review and transparency of process"; in other words, it includes more than just the licence of the software (Välimäki M, 2005a).
Over the years the software industry has managed to develop a stable and sustainable innovation model via incorporating elements of the co-creation innovation model into their traditionally closed type of model. On that basis, one could argue that the coexistence of proprietary and open source software is nowadays essential for software companies and that situations where companies incorporate both open source and IP protected software into the final proprietary software they release to the market are relatively common. Due to the different and allegedly conflicting principles under which proprietary and open source software are based, however, the relationship within the two systems might not always be peaceful. As with every disruptive change in company business models, reaching this goal has in fact implied delving into several challenges to look for workable solutions. Among these difficulties, management of the IPRs involved in the model has been a major reason of discussion (Riis T, 2016).
As concluded by Ballardini (2012), the most relevant questions in these types of 'mixed' settings have been related to ownership of the resulting IPRs stemming from the co-creation processes, problems associated with the licensing schemes used (i.e., compatibility with the various licence terms at various levels, namely 1) among different FLOSS licences, 2) among different versions of the same FLOSS licences and 3) among open and closed licences), as well as issues related to the type of IP enforcement strategy to pursue in this context. Certainly, issues related to IP ownership and IP enforcement are strongly inter-correlated with each other. For instance, while identifying right holders may become difficult in the digital environment when digital goods are in parallel or subsequently co-created by several people, monitoring infringement and enforcing those IPRs becomes more challenging. Furthermore, the IP management of co-owned works (for copyright) or inventions (for patents) becomes especially problematic when the value of the respective individual contribution is hard to identify and to measure. To add wood to the fire, laws on co-ownership of IP in Europe are far from clear, as the level of harmonization of the rules among, for e.g., the EU Member States is still not mature (Gorbatyuk A et al., 2016).
At the same time, however, over the years the software industry has managed to develop a set of coping mechanisms to navigate these challenges. Among them, probably the most relevant are strategies developed in terms of compliance with the obligations imposed by the various types of licences a company incorporates into its business model. A first basic yet highly important step has been to build a solid design of the architecture and principles around the types of licence a company plans to incorporate, as well as perform some compliance and compatibility checks of licences included on a regular basis. This also includes monitoring the terms of the licences included in each FLOSS package before choosing them. Clearly, developing ways to deal with the 'copyleft' clause and the so called 'contamination' risk of FLOSS has also been an important point. Even though the safest option appears to be to avoid copyleft types of licences, companies have also developed strategies that have allowed them to also use copyleft licences. Among these, probably the strongest type of strategy has been to rely upon the philosophy and the primary aim of the Free Software Foundation (FSF) and the FLOSS community: to promote the philosophy and ideas behind GPL and open source software. This goal can be achieved, for instance, by seeking compliance of source code distribution both in and out of courtrooms. Moreover, in terms of copyright ownership stemming from co-created works the most successful strategy in software content has been to fully re-write the code while keeping the same functions. Clearly, although this strategy has worked in avoiding possible copyright infringements, it is not necessarily working in case of patents on software. At the same time, though, the existing case law on the specific issue of FLOSS and patents is relatively limited, which might indicate that the legal risk of companies infringing patents when incorporating pieces of FLOSS code into their model is relatively low, for instance because with highly used FLOSS packages the community of users promptly detects possible patent claims (Ballardini RM, 2012)).
As previously explained, 3DP is a technology that allows manufacturing of physical objects starting from digital files. One of the most interesting characteristics of 3DP as a manufacturing method is that it allows expansion of the possibilities for people to participate in the planning and realization of objects . This way, 3DP facilitates the creation of objects 'on demand', based on needs or feedback coming from possible final users of the product, allowing mass customization.
Under the existing regime of global competition, companies are under great pressure to offer not only standard products but also tailored applications (Tuominen K, 2013). The globalized economy is forcing businesses to become increasingly consumer-oriented and to target niches of the market that can be exploited profitably. In other words, 'customization', understood as to make or change something in accordance with the buyer's or user's needs, is increasingly becoming the rule of the game in global business strategy.
Although 3DP technology is far from reaching a suitable point of maturity (Flores Ituarte I. et al, 2015), as of today a strong interest in this technology already exists among the users. This is due partly to the hype surrounding the development of 3DP technology per se  and partly to the clearly great potential that this technology could bring about. Furthermore, even if users might at this point of time not yet be able to print out objects themselves at home, they can rely upon currently available 'printing centres' with a physical or digital address (e.g. Shapeways  or iMaterialize ) or even educational centers (e.g. schools, universities and libraries) (Eisenberg M, 2013).
Generally, to facilitate co-creation activities, open hardware repositories have lately been flourishing. Figure 1 presents a representative view of how different 3DP communities are currently offering CAD models. The offering seems to be fragmented and each platform tries to differentiate itself by targeting specific audiences. The underlying business model, CAD data licensing options (e.g. some allow only uploading of CAD files, some others also allow downloading and sharing of CADs) and pricing strategies differ from platform to platform. Other substantial differences exist in aspects such as the availability of CAD and target users of these models. Despite a noticeable emergence of platforms offering CAD models for the engineering community, the biggest volume of CAD models offered is targeted at the community of hobbyist fabbers, designers and amateurs.
The advantages of 3DP in terms of customization, together with the fact that social media have clearly shown us that user interactivity is a powerful tool of success for several digital businesses (e.g., the videogame industry), all indicate that co-creation and 3DP will keep on growing in the not too distant future. Indeed, there is reason to believe that co-creation models in 3DP will play a key role in the development of commercial products, especially in those industry fields characterized by the need for personalised/tailor-made/customized items and where a strong bond exists between the item per se and the community of users. For instance, co-creation for final products in 3DP might work well in sectors such as orthopaedics and robotics (which are usually highly personalized items) and in areas very close to consumers, such as the merchandising and fashion industries. Indeed, in any potential industry field, the key question relates to what business models to implement in order to be able to commercialise and profit from such co-creation models. Even though answering this question might include several aspects, here we will focus primarily on law-related issues with focus on IPRs.
An empirical study in the form of case study research (Yin R, 2008; Yin R, 2011; Stake R, 1995; Tellis W, 1997) was conducted. Case study analysis was chosen because an in-depth investigation was needed to provide a holistic understanding of the phenomenon. To this end, the case study relied upon qualitative analysis to uncover whether the type of co-creation innovation model we identified is efficient in the field of 3DP and what kind of specific problems it poses in practice. The theoretical focus of the study was the problem(s) encountered by commercial companies co-creating with the users' community in the 3DP business.
The subject of the study was exemplified by representative stakeholders operating in the field. A multiple case study was conducted because more than one case was available. The nature of the project and the type of research questions investigated justified an 'intrinsic' and 'collective' case study, that is a study where a group of cases or objects are studied.
Legal experts (i.e. in-house legal counsellors and lawyers experts in IP law and 3DP).
These stakeholders were chosen because they represented a wide variety of backgrounds that helped us forming a clear picture of the issues. Key people working in the companies were experts well-informed of the research object.
The size of the companies and their geographical areas of operation were not regarded as important factors in the selection of cases. Table 1 shows detailed information on the interviews and respondents.
specific questions on possible coping mechanisms to navigate the challenges identified.
Interviews were the most important source of information for the study and followed a semi-structured format. Key respondents were asked to answer the research questions from the perspective of their company, but also and more importantly, based on their extensive knowledge of the field. The semi-structured nature of the protocol meant that the questions were taken as starting points to the discussion. Our motivation was to establish natural professional atmosphere to discuss relevant issues related to co-creation and 3DP. Instead of leading the respondents and in order to capture the voice of the respondents, we intervened for clarifications and follow-up questions. This resulted in discussions that went beyond the interview protocol. Respondents were free to propose solutions or provide insights into the subject matter, as well as to corroborate evidence obtained from other sources. Indeed, this interactive method expanded the depth of data gathered. It is worth noting that our interviews were not geared towards providing the most common views or statistical generalisations. Instead, we aimed to find a sufficient number of differing viewpoints in order to cover the related issues. As such, the case study aimed to generate new understandings, rather than answer one (or a few) specific question(s). The interviews resulted in a rich corpus of discussion data which then served as material for the in-depth data analyses and reflection back to the theory.
The study used two different sources of evidence relevant for our study: documents and interviews. The documents used were case law, legislation, publicly available company policy in the fields of intellectual property and open source, and company websites.
We transcribed the interviews and used pattern-matching techniques based on identified groups of questions (general, challenges, and coping mechanisms) and on the selected clusters (CAD services, CAD platforms, CAD repository users and legal experts). A draft report was written based both on the documents consulted and on answers received during interviews. All participants in the study then reviewed their own interview transcript and the whole report to verify the accuracy of reporting their answers, as well as the overall conclusions and observations. This process enhanced the accuracy of the case study.
The anonymity of the subjects interviewed and their respective companies was necessary because some participants considered the topic both controversial and confidential. As a compromise, a cross-case analysis was composed instead of a single-case report. The case study report does not portray any single company but rather a synthesis of lessons learned from key experts. Accordingly, none of the cases are presented as a single case study. Instead, examples from the cases are discussed under each research topic section.
In the following part we first describe and analyse the results derived from the empirical study (5.2.1, 5.2.2, 5.2.3). In session 5.2.2., before presenting the empirical results, we discuss from a theoretical perspective some of the key issues related to the questions that we posed to the interviews. Subsequently (5.2.4), we proceed with developing some recommendations for IP strategy in order to navigate the challenges and boost the opportunities stemming from this type of co-creation model in 3DP.
Generally, the empirical study shows that the level of knowledge of the issues addressed in this research varied considerably among interviewees. Those who regularly operate in the legal profession (e.g. IP company counsels and IP lawyers) were clearly more aware of the potential implications for IPRs. At the same time, however, the interviews showed how most of the questions over how the law should apply to this field of technology remain open at this point of time. We also found a great degree of heterogeneity about the importance of the issues at stake, with some interviewees stressing certain issues and others emphasizing different matters. Broadly speaking, the results showed four major points of concern in terms of co-creation and 3DP in the context of commercialization of final products: two of these were law-related and referred to the legal status of CAD files and the unsuitability of currently available open source licences for CADs. The other two major reasons for concern were not related to IPRs, but rather to technical issues: the quality of open available CAD files and the shortcomings deriving from the fact that 3DP technology is not yet sufficiently mature to support a co-creation type of innovation model for final products. In addition, several other legal concerns were pointed out, although in a more scattered manner.
Currently, co-creation in 3DP in general is at an early stage and it appears still confined to the marketing level (i.e. used to produce quickly multiple product variants and gather customer feedback in product development activities). Even though companies in various industry sectors are clearly looking towards co-creating with 3DP open community for ultimately developing commercial products, they seem to be reluctant to take that further step at this stage. On the one hand, this is because 3DP technology per se is still in its early phases of adoption at the final product level and, on the other, because not enough successful co-creation models and projects have been developed in 3DP thus far. Indeed, this might well be a problem that will resolve itself once the technology reaches a sufficient point of maturity. One respondent pointed out that another problem might be related to awareness of open source and co-creation in general. A frequent perception among companies is that open source and commercialization stand exactly in opposition to each other. The overall notion that there are many different flavours of open source with different licensing models and different legal ramifications is often not clear among corporations. According to respondents, this factor might impede co-creation models from appearing even on a more general level.
In terms of relevance of the co-creation model according to industry sectors, only a few of the companies interviewed thought that co-creation will be equally relevant across all industries and that open-source communities, in general, will play a key role in the future of 3DP. Most respondents drew a clear distinction between the industrial type of 3DP applications, on the one hand, and the consumer side, on the other. Generally speaking, the emphasis was on how the consumer side is already moving towards this co-creation type of model, while the industrial side is still more protected. An important reason for this relates to costs: R&D costs in industrial applications are often considerable, while at consumer level R&D is limited, the life cycle of products is short and the costs involved in production are relatively low. Clearly, the higher the costs companies have to put into R&D and production the more reluctant they are to expose their IP portfolios. Another factor that was identified is associated with the increasing affordability of home printers: even though a big market will soon exist for home 3D printers, people will most probably be able to print out only 'low' value items if they want to keep the level of their investment low. Not only is the quality of printers not sufficiently accurate to support manufacturing of high-value items (and according to most respondents this will continue to be the case), but also the cost of materials to be used for printing out such objects can be very considerable.
Increased competition between companies might also play an important role in companies' willingness to share: competition puts companies in a defensive situation in order to protect their own investments. This may push them towards applying a more proprietary type of strategy in respect to their most valuable CAD data, while only sharing old or valueless designs. Co-creation might work better for those consumer-level products that are relatively simple and more 'technically' and 'functionally' oriented, rather than 'artistic' types of object, where designers might be more attached to models they have actually created. Moreover, co-creation works better for companies that rely upon business models according to which their products are renewed relatively often (e.g. 'Disney-type' companies). For corporations that rely upon core products and brands  that do not change (at least not substantially) over the years (e.g. 'Moomin-type' companies) allowing co-creation on actual products might not work as well.
It was also pointed out that because the underlying idea with 3DP is that it enables "building things differently" from conventional manufacturing, in the sense that "you can build in value into the designs", this in turn implies that designers are putting more work into creating their own designs. In some cases, designers may well put three to six months of their time into developing a new design. For these types of more complex, time-consuming design developments, co-creation might not work well. In contrast, co-creation might be highly relevant for simple objects, such as in the spare-parts market. Indeed, the digitalization of inventories and the possibility to manufacture spare parts on demand is one of the most promising applications of 3DP in industrial domains (Khajavi et al., 2014).
Respondents also highlighted how co-creation might end up short for those sectors and products where significant concerns exist about product liability. In these cases, allowing the whole community to tinker with products might be perceived as dangerous and at times unethical.
Among the factors that might influence the success or failure of co-creation for 3D printed commercial products, the presence and infrastructure of the open source community plays a major role. At the current stage, the 3DP open source community is scattered and fragmented. Thus, in order for the co-creation model to succeed, the need is to develop a solid community of developers that are willing and able to work together on common projects. Whether such a community will be created also depends on market opportunities and demand for products that can be realistically developed by an open group of designers.  For companies and brand owners it will be important, firstly, to understand the best known co-creation models in their field of industry and in which designers have a role and, secondly, to try to learn how to be agile players and able to use different kinds of community supporting design and 3DP.
At the current stage, it appears clear that several problems associated with co-creation of 3D printable products seem to relate to technical shortcomings of the technology per se. Looking towards the future, however, it seems that issues related to IP will become increasingly important. In fact, the confluence of developing 3DP technologies from several fronts at very high speed (e.g. scanning devices being inserted into mobile phones and apps, high quality 3D software for CAD, simple 3D rendering sets, penetration of 3D printers among consumers and improved printing technology) indicate that in the not too distant future consumers will be able to make their own versions of their favourite "stuff". One respondent pointed out that: "Once consumers are able to make user-generated content that spans not only from consumer collectible products, like toys or fashion and accessories, but also home goods and replacement parts, then brands and companies that put products on the market are going to be faced with the very same questions that the music industry was facing, especially in relation to enforcing their IPRs in that environment" . The perception is that in this scenario the necessity for owners of IP to allow co-creation on a consumer level and, consequently, to find ways to be able to monetise this consumer interaction with IP will become increasingly important.
At the core of 3DP is the CAD file, which is the digital representation of the physical product. The classification within the IP system of CAD files is of paramount importance for the proper functioning of co-creation settings. Are CAD files protected by copyright (e.g. as 'works of art', 'software', or 'databases')? Are they protected by patents, trademarks, designs or something else? At the time of writing, no legislator or court in Europe or the USA has yet addressed this question, although some of these alternatives have been presented and discussed in the legal literature (e.g. Mendis D, 2012 and Elam V, 2016). Indeed, this is a question that should be carefully addressed considering the possible repercussions from the perspective of both IP laws (which piece of law should be the relevant one to apply?) and policies. For instance, IP mechanisms apply differently in relation to the type of innovation or creation involved (e.g. copyright protects original and creative works, including literary, dramatic, musical and artistic works; a sui generis type of protection mechanism, in addition to copyrights, might apply to databases in some jurisdictions; patents protect inventions that are novel, inventive and industrially applicable, as far as they are sufficiently disclosed; trademarks protect any sign capable of graphic representation by which consumers can identify the source of goods or services ; while industrial design protects original, ornamental and non-functional features of the whole or part of an industrial or handcrafted product resulting from features in the lines, contours, colours, shape, texture, and/or materials used).
Again, from a policy perspective, it may appear questionable whether the legal nature of CAD should ever be addressed separately from the legal nature of the physical object the CAD represents. For e.g., previous examples like those coming from the music sector, have shown that in terms of copyright protection, usually the digital copy of the original work receives the same protection than the physical one (e.g. if the first created physical work meets the requirement of originality to attract copyright protection, then also the digital version of such work would pass the originality bar). However, if, for instance, we were to decide a priori that CAD files are always to be considered 'software' in the view of the law, not only a specific piece of law (i.e. the Software Copyright Directive) and the specific rules in there included would apply in terms of copyright protection, but also this might mean that the CAD file (i.e. a software work) would attract copyright protection almost automatically. For instance, both in the USA and in Europe, the threshold of 'originality' required for software is nowadays generally relatively low. On the other hand, it could also be that the physical object that a CAD file (i.e. the software) represents would not attract copyright protection at all (e.g. because the object is not original or because it is a functional object). In such cases, the CAD file and the physical object it represents would be treated differently in the light of the law (namely: the first created physical object would not be copyrightable, while the digital copy of such object would be).
One of the cornerstone elements that supports the functioning of the co-creation innovation model is the licensing scheme, as seen in the case of software (Välimäki M, 2005b). Historically, open source software licences and the principles they embed also represent the basic starting point of co-creation in fields other than software. A clear example of the influence of FLOSS is the Creative Commons (CC) licence for creative and artistic types of works. That is why existing open hardware platforms and repositories that host CAD files rely primarily on FLOSS licenses or, alternatively, on CC licences. In some cases no specific open source licence is used, while repositories simply rely upon their own terms and conditions.
Although some ongoing projects aim at developing open hardware licences to address multiple layers of rights, including different IPRs related to content, software and materials (e.g. the TAPR Open Hardware Licence  and the CERN Open hardware licence  ) these licensing schemes do not seem to be yet sufficiently developed, at least not from the perspective of 3DP and CAD files. At the same time, though, both FLOSS and CC licences may present several shortcomings when used to license IPRs associated with CAD files.
A major problem relates to the fact that most FLOSS licences and all CC licences are based on copyright. According to Murray J (2014), these types of licences are "legal documents allowing copyright (and in some cases database rights and rights similar to copyright) holders to permit certain uses of their works that would not otherwise be permitted by adhering to the terms of copyright law". In other words, most FLOSS and CC licences allow people to easily give permission to others to use their copyrighted creations ('works'). As a consequence, these licensing schemes are appropriate as far as the 'item' to be licensed is fully covered by copyright. Indeed, the unsuitability of these types of licences for CAD files appears particularly prevalent in the 3DP cycle step of translating a digital object into the physical realm. Unlike with code or simply digital content, with hardware the licensing process is in fact more complex. The unique fact that with 3DP digital and physical are bound together and that a digital CAD file all of a sudden becomes hardware poses a challenge to the licensing system that has never been faced before. FLOSS and CC licences were not written with this perception in mind and, as such, they might not be suitable to deal with this framework.
Interestingly, the issue related to licensing schemes sparked a variety of different opinions among respondents. Indeed, even though most respondents agreed that FLOSS and CC licences are not appropriate for CAD files, the reasons behind this and the degree of relevance of the issue seemed to differ.
Interestingly, however, the interviews also revealed that the challenge related to the fact that currently no suitable licence is available for co-creating in a world of 3DP might not be as great as initially perceived. On the one hand, this is a real challenge for those companies that own IPRs like patents, designs and trademarks, because no suitable open source licence is currently available. On the other, the risk is negligible if companies have no IP to license (for instance because, as mentioned, most objects reproducible via 3DP are unoriginal or functional, thus not copyrightable, or because companies have no other registered IPRs). It was pointed out that, if we compare 3DP with software the difference becomes clear: because in most probability a computer programme attracts copyright protection, copyright is a much bigger barrier in this field, where licences are needed in order to allow co-creation (copyright arises almost by default). Quite the reverse: for most functional items no protection by default is available (with the exception of unregistered trademarks and designs), while protection usually arises only upon registration of certain IPRs. This way, it was pointed out that "it is less common for users to stumble into, for instance, 'patent licensing thickets' in the same way that they may stumble into 'copyright licensing thickets'".  This also means that the importance of licensing in this field might not be equally critical for every 3DP-related project in the same way that copyright licensing is critical to practically every software project.
Interestingly, not all respondents agreed on the need to develop new open source licences tailored for 3DP. In fact, even though it appeared clear that CC licences are not suitable for 3DP (because they are only suitable for creative works of art, thus copyright protected works), some traditional FLOSS licences may be suitable for 3DP as well. It was pointed out that, at least from the legal perspective, these open source licences apply to everything, to all types of IPRs and creations/inventions (i.e., not only to software).  According to this standpoint, there is thus no need to develop any new type of open source licence tailored only to 3DP because the legal principles embedded in several FLOSS licences are also proper for this technology.
To our knowledge, at the time of writing no decision has been handed down by any court in Europe (or in the United States) on issues related to 3DP and IPRs. At the same time, however, the empirical study revealed that starting from 2013 disputes among parties have begun to arise in this field (even though they were settled before reaching a court). Generally speaking, most disputes involved Internet service providers (ISPs) and platforms offering CAD files, or printing services (e.g., service bureaus, printing shops and maker spaces). Additionally, producers and manufacturers of raw materials and filaments have been involved in private disputes. At this stage, most disputes have been focused on product liability issues, while IPR matters encompassed a smaller proportion of cases.
Some disputes have highlighted issues with IPRs and 3DP in general. On the specific theme of 3DP and co-creation, it was reported that the cases that have appeared thus far have involved users 'offering' CAD files of allegedly protected items on their websites or on third party websites. Clearly, even in view of the private copy exception, 'offering' a protected item on a website is not allowed under copyright law in most European jurisdictions. Similar examples, such as the Super 8 movie case  , the Warhammer case  , the Penrose Triangle case  , the Game of Thrones case  and the Super Bowl 'Shark' case  , all cases involving users creating CAD models of allegedly protected works and sharing them via open hardware platforms, have already made the headlines all over the world. Indeed, these types of cases raise questions not only as to the extent and scope of IP protection of CAD models, but also to the aggressive use of 'cease and desist' letters and of 'takedown notices' as tools for enforcing IPRs.
In addition to the above mentioned legal challenges, respondents highlighted how at the current stage several problems still lay in the technology per se, as well as in the level of standardization in the field of 3DP. Even though the focus of this paper is mostly on IPR related matters, it is important at least to touch upon these additional problems, since they are essential in order to obtain a general picture of the topic of co-creation in this field of technology.
The empirical study shed light on several types of strategies that IP holders could implement in an attempt to engage in co-creation in the field of 3DP.
The interviews revealed that there is generally much interest (from the standpoint of both companies and of the user community) in these types of large-scale licensing models, where brands are able to engage with certain members of the design community, legitimise them and, that way, create a large group of designers who are doing R&D and merchandising for the company in a novel way and bringing new and fresh ideas in house. Indeed, this model, if properly constructed, may also lead to significant licensing revenues for rights holders. At the same time, because this is not the traditional way to do business for most (large) rights holders, it remains unclear how the 'rules of the game' should be built in order to boost opportunities, while minimizing the IPRs related risks. The SuperFanArt type of licensing deal, for instance, is one such type of deal, but more models need to be developed to accommodate the different needs of other companies. Some respondents were also not sure whether engaging in these developing models would be a valid option for their business at all, as they rather saw it as a possible distortion of their brands.  For instance, the importance was stressed for some types of company of being 'loyal to their customers' and keeping their brand integrity by sticking to the overall traditions and stories on which the brand was originally built.
A pilot model tested by one of the respondents  was based on a close deal with one online platform for offering for sale some classic products that were no longer protected by IPRs. This pilot project was aimed at testing the ground and seeing whether deals of this kind could work. As such, however, the project did not engage with the user community because it did not imply any possibility for customers to co-create. The 3D files of the products were just hosted on the platform and consumers could order them as a 3D printed item (physical product only). The idea was more for marketing purposes and to show that the company was engaging in some business activities that other brands had not yet been doing, thus also allowing possibilities to renovate or renew the brand. So far, however, that project has not shown itself to be successful. The company thought that the main reason was because both business and consumers are not yet sufficiently mature and prepared to embrace these types of model.
One respondent especially highlighted the importance of right holders engaging in projects that aim at finding ways to legally monetize user-generated content that would typically be seen as illegal.  The respondent himself was engaged in one such project that, in similar ways to YouTube, aims to offer IP recognition and IP licensing services to brands that will allow content creators and online marketplaces to easily enable the monetization of user-created products. In other words, a system of scalable licensing agreements that allow anyone to use protected IP to create and sell products online. According to one respondent, this is the only way to avoid situations similar to the 'copyright disaster' that occurred with the entertainment industry due to the advent of P2P file-sharing technology and thus avoid expensive and inefficient lawsuits. Vice versa, engaging with their community of fans via relying upon 'micro-licensing' options that allow monetary returns to brands from user-generated content created by the community appears to be the only feasible way to survive in a world of ubiquitous 3D printers. This model certainly provides a useful alternative for many types of co-creation models and in several industry fields, especially in those areas that are more consumer-related.
On this model, open questions remain as to whether it will be feasible to create a sufficiently stable and sizeable community to support such types of user-generated content activity (for a more thorough investigation on this, see Dan Hunter et al, 2012), on the one hand, and whether this model might function for more industrial-type creations, on the other .
Another workable model that arose is based on a strategy according to which companies would first engage in co-creation with the users (e.g. allowing them to think through and engage in R&D activities), that way developing some solid product line and, subsequently, close down part of this open line of developed products. Open source solutions should be kept on the market in order to keep getting ideas and inputs from the community.  Especially in some fields of industry, like orthopaedics, which suffers from lack of affordable and effective commercially available solutions, this model may work well.
From a licensing perspective, an instrument that could enable such activity could be a system of double-licensing. This model has been used successfully by other companies for instance in the software field (Välimäki M, 2003). The dual licensing model that has been used in software mixed together proprietary and open source mechanisms and offered the same product under both a traditional proprietary licence and an open source licence. Technically, only one core product exists, but two licences are used: one for free distribution and use, and the other for proprietary distribution. With dual licensing anyone can download the product (software or CAD file) for free and redistribute it, just so long as the redistributed product is licensed under a FLOSS licence. The second licence removes the open source licence restrictions and allows purchasers to distribute it and integrate it with proprietary products. This second option obviously targets companies planning to customize the product for commercial purposes. Thus, both licences allow developers to customize the product and redistribute it as part of a larger product. If the larger product is released as open source, no licence needs to be purchased. If the product is distributed in proprietary form, it requires a commercial licence.
An important strategy that companies could implement in order to enabling co-creation would be to make available on the market authorized CAD blueprints of their products under certain conditions. IP owners could start selling authorised CAD blueprints of their products, in a similar way to selling music in MP3 in online stores. Additional services could also be included for those customers purchasing these authorised blueprints, such as customer support, repairs and future updates. The advantages for consumers would range from being able to modify the blueprints (under certain conditions), as well as reduced need to worry about viruses, reduced defective CAD files (compared for instance to those CAD files available under online platforms) and reasonable prices. Indeed, the challenge from a company perspective is how to find a proper balance between enabling co-creation via providing authorised 3D blueprints while being able to monetise from IPR ownership.
Generally, however, in terms of taking this type of strategy on board, the empirical study showed fragmented results. Although all respondents agreed that selling authorised CAD files of their products could be an instrument to allow co-creation, some respondents thought that it would be too difficult to keep control while it would over-expose them to copying.  This position was especially embraced by companies that did not have a strong IP portfolio or any specific IPR strategy implemented, so that they felt especially vulnerable, even though they clearly saw the merit in this type of innovation model.
Other, more established companies considered that selling authorised CAD models of their products is a good option, but that the market is not yet sufficiently mature for this type of business.  Notwithstanding, it was highlighted that with the prospect of future developments it is advisable for companies (especially those operating in consumer markets) to start preparing by already creating CAD models of their products in advance.
The importance of digital rights management (DRM) to allow keeping control over CAD files was also pointed out. However, even though the importance of DRM for files emerged, respondents did not seem to be aware of any such solution currently available in the market, so that they did not seem to know precisely what possible coping mechanism could be adopted.
The empirical study also revealed the possible key role of trademark protection to enable co-creation in 3DP. It was pointed out that one way would be to include a trademark-related provision in all IP licences, waiving the possibility for licensees to trademark anything that is created (or co-created) based on one of the company's models or products.  For instance, one respondent said that "We work with some video game providers that are wildly popular around the world. We help creating some 3D-printable products for them, they license us the rights to the character from a video game and then we make products. In all of those licenses, there is a provision specifically about trademarks that says that we, as the licensee, have no ability to trademark anything that we create. Thus, by contract, are agreeing not to trademark these thigs ourselves, and that they basically hold the exclusive ability to go register the trademark for anything that they have licensed (to us)".
Another option that was pointed out is to base the licensing agreement on trademark protection of the CAD files.  Indeed, with 3DP it is possible that even though a company already holds trademarks on the physical products, protection should be extended to different trademark categories such as computer files and computerised programmes  . Extending trademark protection to other categories might be especially important at the present time, because, as explained earlier, the legal nature of CAD files remains an open question.
One respondent also pointed towards a recent initiative by the Open Source Hardware Association called the 'Open Source Hardware Certification Mark' program  . The idea behind this initiative is to create a system based on certification, so not depending on any open source licence linked to the CAD file, for open hardware in general. Upon meeting certain requirements, a certificate is issued under the form of a trademark logo to be placed on the goods, in order for the company to be able to communicate to the market that 'they are open'.  This system could also work well for 3DP.
The study showed that in some segments of the 3DP ecosystem, engaging in co-creation with the user community might not only lead to substantial profits, but it might also be the only feasible way for companies to keep up in the market and keep hold of their IP rights in a world of ubiquitous 3D printers. Indeed, a model of this kind appears to work better for simple, close-to-consumer types of application (e.g. the entertainment, gadgets and simple spare parts markets) rather than complex, industrial areas (e.g. the medical or automotive industries). The study also revealed that companies operating in markets where co-creation is likely to take over will soon need to take pro-active approaches towards enabling adaptation of their business models to this technological disruption.
Indeed, one of the biggest challenges for companies in reaching this goal lies in developing sustainable and effective IPR strategies. The research revealed that the most urgent questions in terms of IPRs relate to defining the legal nature of CAD files, the feasibility of currently available licensing schemes for CADs, as well as issues related to enforcement of IPRs in the 3DP environment. At the same time, the results clearly show that, at the time of writing, several problems, other than IP, also need to find proper answers. Among these, the most relevant were maturity of 3DP technology per se, fragmentation of the user community and technology standardization matters.
The study also shed light on some possible coping mechanisms that companies could implement in order to navigate the challenges (especially in terms of IPRs) associated with co-creation in 3DP, that way boosting the great opportunities envisaged. Among these, the most relevant were towards developing specific types of licensing scheme, especially: 1) via structured licence schemes developed together with IP owners, platforms and users; 2) by co-creating via the so-called "You-Tube model", i.e. in the context of specific user-generated content platforms that implement mixed licensing rules to enable co-creation; 3) via double licensing types of model; or 4) via selling licensed CAD files of companies' products. The study also indicated a possible increase in the importance of using trademarks and certificate programmes based on trademark laws as strategic tools in the context of co-creating in 3DP.
Notwithstanding these important findings on possible IP strategies, the study also shed light on the need for future research on several fronts. First, the study mostly pointed towards the consumer-side perspective of 3DP. The reason for this can likely be justified by the fact that currently available technology already allows reproduction of simple, consumer-level types of item via consumers' 3D printers, while in terms of more complex, functional items the technology is not yet sufficiently mature. However, one should not derive from this the assumption that no market potential will arise from the industrial side. Instead, our approach allowed us to set a precedent for when the technology will develop sufficiently to also allow the functional, more complex, industrial side of 3DP. For instance, by selling licensed CAD files for digital inventories and spare parts applications or by entering in the co-creation model during product development activities. This notwithstanding, more research is required to investigate these issues from the industrial standpoint.
Second, the study also revealed that, compared to the software field, in 3DP stronger barriers might arise in terms of creating a sufficiently strong community of 'designers', as referred to amateurs and hobbyists fabber/consumers -pro-sumers. On the one hand, further research is needed in order to better investigate and develop workable ways for companies to be agile players in the context of the currently highly fragmented designer community. On the other hand, however, it can also be argued that because it might be more difficult for communities and users to 'take over' and establish themselves in the 3DP ecosystem, there could also be more room for brands to impede co-creation from ever taking place in this area. Indeed, if brands were successful in preventing co-creation in 3DP, the danger is that this could potentially be the crashing point of 3DP in final products. Certainly this point also stresses the importance of further research in this area.
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 Rosa Maria Ballardini, University of Lapland, Faculty of Law (Finland), rosa.ballardini@ulapland.fi (Corresponding author); Juho Lindman, University of Gothenburg Chalmers, Department of Applied IT (Sweden), juho.lindman@ait.gu.se; Inigo Flores Ituarte, Aalto University, School of Engineering (Finland), inigo.flores.ituarte@aalto.fi.
 See, for example World Economic Forum report, 2016 at: https://www.weforum.org/reports/world-economic-forum-annual-meeting-2016-mastering-the-fourth-industrial-revolution .
 By 'users' we refer here to members of the community that are active producers of designs. As such, in this paper we will use the word 'users', 'designers', 'pro-sumers' and 'hobbyists' interchangeably.
 The term 'open source license' describes several different licenses certified by the Open Source Initiative. See http://www.opensource.org/.
 See GNU Lesser General Public License, version 2, at http://www.gnu.org/copyleft/lesser.html, "Terms and Conditions for Copying, Distribution, and Modification", 2b).
 Ibid , GNU Lesser General Public License.
 See Mozzilla Public License Version 1.1. at http://www.mozilla.org/MPL/MPL-1.1.html.
 'Brand' is in this paper used in accordance to the definition provided in, for e.g., Helen Lom, "Branding: How to Use Intellectual Property to Create Value for Your Business" (WIPO, 2014), i.e. not as a synonymous of trademark, but "in a wider sense for referring to a combination of tangible and intangible assets like trademark, design, logo, trade dresse and the concept, image and reputation that those elements transmit with respect to specified products and/or services".
 Company 1 and Company 2.
 See, for instance, Berne Convention for the Protection of Literary and Artistic Works (1886), Arts 2 and 4 and Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, (28) of the preamble.
 See, for instance, Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.
 See, for instance, Paris Convention for the Protection of Industrial Property (1883), Art. 4 and European Patent Convention (1973), Art. 52.
 See, for instance, Paris Convention (1883), Art. 5, the Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs, Art. 1, the Community Design Regulation (CDR) EC No 6/2002 and Community Design Implementing Regulation (CDIR) EC No 2245/2002.
 While in the USA such threshold has traditionally been quite low, in the EU, countries used to differ on the level of originality required for software works (for e.g. Germany required a high threshold, while the UK a much lower one). However, the harmonization process conducted by the Court of Justice of the European Union (CJEU) has led to a softening of the requirements that some of the Member States previously enforced. See Infopaq International A/S v Danske Dagblades Forening (C-5/08), Judgment of the Court (Fourth Chamber) of 16 July 2009; Bezpecnostní softwarová asociace - Svaz softwarové ochrany v Ministerstvo kultury (C-393/09), Judgment of the Court (Third Chamber) of 22 December 2010; Football Association Premier League Ltd and Others v QC Leisure and Others ( C-403/08) and Karen Murphy v Media Protection Services Ltd (C-429/08), Judgment of the Court (Grand Chamber) of 4 October 2011; Eva-Maria Painer v Standard VerlagsGmbH and Others (C-145/10), Order of the Court (Third Chamber) of 7 March 2013; Football Dataco Ltd and Others v Yahoo! UK Ltd and Others (C-604/10), Judgment of the Court (Third Chamber) of 1 March 2012.
 Company 5, respondent # 3.
 Company 5, respondent # 2.
 Company 1, 2, 4, and 11.
 See Todd Blatt Blog, http://toddblatt.blogspot.ch/2011/06/cease-and-desist.html and http://torrentfreak.com/paramount-cease-and-desist-targets-3d-printer-pirate-110628/ . See also H. Peter, "The Next Napster? Copyright Questions as 3D Printing Comes of Age", ARSTECHNICA.COM (6 April 2011), http://arstechnica.com/tech-policy/2011/04/the-next-napster-copyright-questions-as-3d-printing-comes-of-age/ .
 Castle, "Warhammer at War: How Home 3D Printers Are Disrupting Miniature Games" (2013), Tested.com. Available at: http://www.tested.com/art/makers/452866-how-home-3d-printers-are-disrupting-miniature-gaming/ .
 For more information on the case see B. Rideout, "Printing the Impossible Triangle: The Copyright Implications of Three-Dimensional Printing", 5 J. Bus. Entrepreneurship & L Issue 1 (2011). Available at: http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1074&context=jbel .
 See M. Masnick, "There's Something Fishy With Katy Perry's Left Shark 3D Printing Takedown", (6 February 2015, Techdirt). Available at: https://www.techdirt.com/articles/20150205/16305829921/katy-perry-claims-copyright-over-left-shark-issues-takedown-over-3d-printable-version.shtml .
 For discussion on artistic works, see also http://www.alai.org/en/.
 See Nice Classification (trademarks), Goods, Class 090342-090372.

matches:
sui generis
Art. 4
Art. 4
Art. 52
Art. 5
Art. 1


On June 8, 2010, the Court sentenced defendant to 151 months in prison based on a binding plea agreement under Rule 11(c)(1)(C), Fed. R. Crim. P. On November 2, 2015, the Court overruled defendant's motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). The United States Supreme Court recently held that defendants who plead guilty under Rule 11(c)(1)(C) may seek relief under Section 3582(c)(2) “to the extent the prisoner's Guideline range was a relevant part of the framework the judge used to accept the plea agreement or determine the sentence.” Hughes v. United States, 138 S.Ct. 1765, 1778 (June 4, 2018). After Hughes, Kirk Redmond, an Assistant Federal Public Defender, negotiated with government counsel on potential relief under Amendment 782 to the United States Sentencing Guidelines and 18 U.S.C. § 3582(c)(2). The parties have submitted an agreed order on AO Form 247. The parties propose a reduction of defendant's term of imprisonment from 151 months to 135 months.
A federal district court may modify a defendant's sentence only where Congress has expressly authorized it to do so. See 18 U.S.C. § 3582(c); United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Defendant seeks relief under Section 3582(c)(2), which permits the Court to reduce a sentence if defendant has been sentenced to a term of imprisonment “based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o).” 18 U.S.C. § 3582(c). If eligible, the Court may reduce defendant's term of imprisonment after considering any applicable factors set forth in Section 3553(a), “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c); see Dillon v. United States, 560 U.S. 817, 826-27 (2010); United States v. Green, 625 Fed.Appx. 901, 904 (10th Cir. 2015).
The Tenth Circuit has held that to obtain relief under Section 3582(c)(2), defendant must overcome three distinct hurdles: (1) under the statute's “based on” clause, defendant must show he was sentenced based on a guideline range the Sentencing Commission lowered after his sentencing; (2) under the statute's “consistent with” clause, defendant must show that his request for a sentence reduction is consistent with the Commission's policy statements and (3) defendant must convince the district court that he is entitled to relief in light of the sentencing factors found in Section 3553(a). United States v. C.D., 848 F.3d 1286, 1289-90 (10th Cir. 2017). Under Tenth Circuit precedent, the first hurdle is jurisdictional. Id. at 1289.
The parties have submitted an agreed order which does not address the above issues. So the Court can properly consider the joint request for relief, the parties shall file memoranda which explain how defendant is eligible for relief under Section 3582(c)(2) and why relief is appropriate in light of the sentencing factors in Section 3553(a). In addition, the memoranda shall address (1) the factors that the Court relied on in accepting the recommended sentence in the Rule 11(c)(1)(C) agreement, (2) how defendant's guideline range impacted the Court's decision to accept the Rule 11(c)(1)(C) agreement, (3) any public safety considerations and (4) defendant's post-sentencing conduct. See Hughes, 138 S.Ct. at 1778 (if district court would have imposed same sentence even if defendant had been subject to lower range, court has discretion to deny relief); United States v. Osborn, 679 F.3d 1193, 1195 (10th Cir. 2012) (in addition to Section 3553(a) factors, court may consider post-sentencing conduct); U.S.S.G. § 1B1.10 cmt. n.1(B)(ii) (public safety considerations); U.S.S.G. § 1B1.10 cmt. n.1(B)(iii) (post-sentencing conduct). In addition, the parties shall address the calculation of the base offense level under the amended guidelines. As with co-defendant Carlos Dozal-Alvarez, defendant's base offense level appears to remain at level 38 because the Court likely would attribute at least 8.15 kilograms of methamphetamine (actual) to him by using the conversion percentage set forth in the presentence investigation report.See U.S.S.G. § 2D1.1(c)(1) (Nov. 1, 2016 ed.) (base offense level of 38 for 4.5 kilograms or more of methamphetamine(actual)); see also Order To Show Cause [As To Carlos Dozal-Alvarez] (Doc. #1112) filed April 27, 2015 (explaining alternative drug calculations for methamphetamine mixture and methamphetamine(actual)).
IT IS THEREFORE ORDERED that on or before July 25, 2018, defendant shall file a memorandum in support of his request for relief which addresses the above issues. On or before August 6, 2018, the government shall file a response.
 Because the plea agreement called for a specific sentence and did not use or employ a guideline sentencing range, the Court overruled defendant's motion. See Memorandum And Order (Doc. #1988) at 1 (citing United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013)).
 The Honorable J. Thomas Marten of the District of Kansas appointed the Office of the Federal Public Defender to represent any defendant previously determined to have been entitled to appointment of counsel or who is now indigent to determine whether that defendant may qualify for relief under Amendment 782.