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ee55c47d
Community Member

Client using my code in production, hasn't paid yet

I'm in a fixed contract price... But nothing is in escrow because I'm new and thought you hit the pay button when you're finished. This client has me hostage. I don't care about the money at this point, but Upwork support has been 100% useless. Do I need a lawyer? I did not agree to them using my code in production without pay.

 

I'm having such a an awful time so far. Thanks in advance.

11 REPLIES 11
iwan-spillebeen
Community Member

Until you have been paid in full, you (not the client) own the intellectual property rights to the code you have created, a client cannot use this in production since they don't own the IP, nor the license to the IP.

 

I would follow the instructions laid out here: https://www.upwork.com/legal#prirp

They always do this. Client initiates the contract, approve payment, get the source code, before the window closes, they immediately ask for the refund with baseless issues. in my case, client merged the code, accepted, right before payment released, he took my money back. these kinds of clients repeat their business and cheat other freelancers.

 

bobafett999
Community Member

Complain to his web host with take down notice.  Ofcourse you need to have some proof that it is your code

 

prestonhunter
Community Member

This is NOT an Upwork support issue.

 

You do NOT need a lawyer.

 

You made a mistake.

Learn from your mistakes and move on.

Figure out how to manage your contracts more effectively.

 

Use only hourly contracts if you don't yet have a handle on fixed-price.

 

Do not waste your time trying to get money from that client. Do not waste your time trying to prevent him from using your source code. You don't owe him any more of your time.

celgins
Community Member

Using the code in production without pay is definitely an issue. To backtrack--submtting the code with nothing in escrow was a mistake, but is there any way to resolve this with the client? Have you reached out to the client and the client has been unresponsive? How did you discover the code was being used in production?

 

I'm asking because something similar happened to me (almost 15 years ago outside of Upwork) and my client thought he could use a development PHP application in production without paying for it. Even though the development version wasn't fully functional, he was attempting to steal the app without paying, and was fine using it with the missing functions.

 

If this client is using a live website with your code running, you may need to explore a DCMA Takedown Notice. I'm sure you've heard of DCMAs, and the information in the Upwork link Iwan sent is excerpted directly from the U.S. Copyright Office, so a DCMA Takedown may be your best bet. There isn't much Upwork can do to help you.

tlsanders
Community Member

Upwork can't help you--since you didn't use the system they designed to protect your payment, they have no recourse. 

 

You may have options on your own. It would be helpful to know how they're using the code, and also to have a general idea of the value of the job (obviously, for instance, you aren't going to pay a lawyer $5,000 to collect $400). 

 

The very best thing you can do to protect yourself is stop taking on new work and learn how Upwork works before you take on your next project. 

ee55c47d
Community Member

Thanks for all the replies. The reason I didn't start with the payment button thing is I pressed once and the client said it wasn't necessary and that I should only do it after the work is submitted. I have a feeling he knows this isn't the case (as I've now learned).

 

I'll look into DCMA as others have pointed out. Is intentionally misleading a freelancer/client about the rules against the ToS?

re: "Is intentionally misleading a freelancer/client about the rules against the ToS?"

 

It doesn't matter if it is against ToS or not.

It is dishonorable, regardless of if the ToS mentions it.

It is dishonest, regardless of if the ToS mentions it.


And it is unenforceable, regardless of if the ToS mentions it.

 

As a freelancer, it is my personal responsibilty to be familiar with how the Upwork system works. Particularly with regards to how I get paid for my work. It is definitely not any client's responsibility to educate freelancers about how the system works.

 

I really don't think ToS mentions this at all.

But for you, in particular, it doesn't matter, because you are no doubt spending more time studying how fixed-price contracts work, so that you don't make mistakes like this in the future.


James S wrote:

Thanks for all the replies. The reason I didn't start with the payment button thing is I pressed once and the client said it wasn't necessary and that I should only do it after the work is submitted. I have a feeling he knows this isn't the case (as I've now learned).


Um, actually that is the case. What you failed to do was to wait until the milestone was funded (in escrow and dedicated to the milestone) before you worked on it and submitted the work.

It doesn't sound like the client misled you. You DO click "submit work/request payment" when the work is submitted. That all happens after you accept the contract, make sure the milestone is funded, and only then do the work. 

 

Relying on a stranger for instructions on how to make sure they don't scam you is a terrible strategy.

2779bde0
Community Member

How much time did you put into this project?

 

Did you set up milestones along the way, so you can get some money as you go along? Did you spell all of this out when you agred to the contract? You always want to be clear on things like this. Like in Vegas, the house always wins, unless you have something in writitng otherwise.

 

It isn't a question of being newer to Upwork. In my 2nd project, I set up milestones. One per week for four weeks. No more money? No more code, bud.

 

If you need to hash this out with an attorney, at least you'll have had some of it before you do this.

 

Best of luck.

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