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Subcontracting - the Right Way to Do It

charles_kozierok
Community Guru
Charles K Member Since: Mar 6, 2017
11 of 37

DMM, lots of things "should" be obvious here but aren't.

 

Experienced freelancers have debated this issue for years, so there's obviously no "standard practice" everyone agrees on.

 

Add random advice from Upwork CS reps and you have a recipe for confusion and conflict.

 

It's just bad policy not to make this clear.

researchediting
Community Guru
Douglas Michael M Member Since: May 22, 2015
12 of 37

@Charles K wrote:

 

Experienced freelancers have debated this issue for years, so there's obviously no "standard practice" everyone agrees on.


No, Charles, there has been no “debate.”

Inxperiencd freelancers and/or wannabes frequently post misinformation about intellectual property issues. Seasoned professionals repeatedly, and usually patiently, correct them, often with the concurrence of Upwork staff.

The standard practices I referred to are not Upwork’s: They predate the existence of Upwork and are codified in both law and custom. You have said these issues do not affect you directly, so there is no need for you to be familiar with them—or to fret over their existence or other people’s ignorance of them.

The less Upwork inserts itself into intellectual property issues, the better for us who work in related fields. Presumably also the better for Upwork, which I imagine is why they made the change.

charles_kozierok
Community Guru
Charles K Member Since: Mar 6, 2017
13 of 37

"No, Charles, there has been no 'debate.' "

 

Yes, there has: https://community.upwork.com/t5/Clients/Rights-to-completed-work/td-p/112089/

 

That's not newbies being corrected by regulars. It is regulars disagreeing on how this works.

 

Note also at the end a definitive answer by a moderator, which now has apparently been silently changed without clearly notifying freelancers or clients that who owns what is now completely undefined.

 

More: https://community.upwork.com/t5/Clients/Decline-Refund/td-p/326909

 

And more: https://community.upwork.com/t5/Clients/Copyright-and-content-ownership/td-p/279104

 

There are no "standard practices." And very few contracts here involve actual contracts with specific terms engaged. Nearly all are conducted under Upwork's TOS. By basically dropping this issue they have created a situation where conflicts and confusion are inevitable. And they haven't even explained why they made this change.

 

This is a legitimate issue and I have no idea why you are trying to sweep it under the carpet. "Law and custom" is meaningless handwaving.

 

PS I find your tone pointlessly condescending. I am asking to get this issue addressed for the sake of the community. Last I checked that wasn't something that warranted criticism, much less dismissal.

researchediting
Community Guru
Douglas Michael M Member Since: May 22, 2015
14 of 37

@Charles K wrote:

  

....There are no "standard practices." And very few contracts here involve actual contracts with specific terms engaged. Nearly all are conducted under Upwork's TOS. By basically dropping this issue they have created a situation where conflicts and confusion are inevitable. And they haven't even explained why they made this change.

 

This is a legitimate issue and I have no idea why you are trying to sweep it under the carpet. "Law and custom" is meaningless handwaving.

 

PS I find your tone pointlessly condescending. I am asking to get this issue addressed for the sake of the community. Last I checked that wasn't something that warranted criticism, much less dismissal.


Yes, Charles, there are. As someone who has been involved in publishing since the 90s, and has been writing for publication since the 80s, I can assure you that I know what I’m talking about. Neither the term law nor the term custom are meaningless, no matter how often you try to wave them away.

What people do or do not do, or know or do not know, about those standard practices is not Upwork’s concern. What Upwork has “dropped” is a default term of service that improperly applied the specific legal definition of “work for hire” to a situation to which it is irrelevant. Anyone is free to opt into that restrictive definition. That it is no longer imposed is a cause for celebration among creative professionals and those in allied fields. To point this out is not sweeping anything under the carpet. It is an honest and informed disagreement with your belief that this forward step is somehow backward.

charles_kozierok
Community Guru
Charles K Member Since: Mar 6, 2017
15 of 37

The bottom line is that nobody knows when the ownership of a work done under a contract here transfers to the client, and nobody knows what happens to that ownership in the event of a refund, and basically the entire matter is left for the parties to figure out because Upwork now refuses to take a position.

 

Why was this change made? Also unknown.


Nearly all work occurs here under Upwork's TOS, not the vaguaries of "law and custom." Since the parties are almost never going to even discuss this in advance, it is the same as any other situation where assumptions are made and communication doesn't occur: it will lead to conflict.

 

You think that's a step forward? Fine. I do not. I dislike a lack of clarity. I dislike clients and freelancers operating under ill-defined conditions. And I see no reason why this issue should not be covered in the TOS here just like so many others are.

 

"Law and custom" often do not properly handle changes in transactions as a result of technology. That's why new laws sometimes have to be made. It is for that reason that gray areas -- like work done on sites such as this, and what happens in the event of a refund -- need to be hashed out, not ignored.

 

"Law and custom" sounds an awful lot to me like "the two parties each do what they want and if one of them has a problem with the other, they hire a lawyer." Again, I don't see this as a step forward compared to the simple clarity of a TOS rule to which both parties agree as a condition of using the site.

 

PS You've been involved in publishing marginally longer than me, but only marginally. I am also probably one of the few people who's been involved in a copyright lawsuit against a major company and spent a lot of time discussing IP law and principles with a lawyer who specialized in this area. None of this is any more relevant to the matter than your past history, mind you. But I didn't just fall off the turnip truck.

charles_kozierok
Community Guru
Charles K Member Since: Mar 6, 2017
16 of 37

Let's make this more concrete.

 

You hire me to make a logo for you. I agree, I make the logo, and you "pay me" for the work. I use quotes because I actually haven't been paid a thing yet -- Upwork has. I have no money.

 

You take the logo and start using it on your website, ordering print materials, etc. with it.

 

Three days later I decide -- for whatever reason I choose, or no reason at all -- to refund your payment.

 

Who owns the logo?


What happens to the cost you incurred using the logo before the refund?

researchediting
Community Guru
Douglas Michael M Member Since: May 22, 2015
17 of 37

@Charles K wrote:

Let's make this more concrete.

 

You hire me to make a logo for you. I agree, I make the logo, and you "pay me" for the work. I use quotes because I actually haven't been paid a thing yet -- Upwork has. I have no money.

 

You take the logo and start using it on your website, ordering print materials, etc. with it.

That would be imprudent on my part. Upwork has previously confirmed that until the money is in your virtual pocket—I think they specified actual receipt of funds in your personal or business account—I own nothing.

 

Three days later I decide -- for whatever reason I choose, or no reason at all -- to refund your payment.

 

No. You don’t. As has been stated earlier in this thread, you can’t unilaterally buy back work product you have sold.

 

Who owns the logo?

I do. As soon as you have the money.


What happens to the cost you incurred using the logo before the refund?


I am prudent enough not to incur any such costs before your ineffective request for the refund that will never be approved. 

charles_kozierok
Community Guru
Charles K Member Since: Mar 6, 2017
18 of 37

> That would be imprudent on my part.

 

Many clients are imprudent. And many are in a hurry. Most are not going to wait up to, what, three weeks, before they use what they contracted for. We all know this.

 

That's why clear rules about this sort of thing need to be in the TOS.

 

How many clients visit the forums? How many are even aware of this change of policy?

 

> No. You don’t. As has been stated earlier in this thread, you can’t unilaterally buy back work product you have sold.

 

In the real world, no, you can't walk into an office and plunk down a check and say "I am buying back what I sold you."

 

But that's the entire point: this isn't like conventional transactions.

 

Upwork allows a freelancer to refund to a client for any reason or no reason at all. For up to 6 months!

 

It's NOT cut and dried and why Upwork washing their hands of this is a problem.

 

> I do. As soon as you have the money.

 

Says who? You? Laws and customs? Whose? According to whom? Which country? Which state?

 

What if I never get the money?

 

PS It's not about what I know or what you, an experienced and prudent freelancer, know. It is about consistency and clarity of policy. If Upwork is going to have rules about who pays whom when, and allow things like refunds well after the contract, then those terms should also specify clearly what happens in those situations. Especially given that this is an international platform and that very few projects involve custom-negotiated terms.

wendy_writes
Community Guru
Wendy C Member Since: Aug 24, 2015
19 of 37

Charles, the obscurities of the platform's ToS and the generalities of U's 'contract' are why so many of us use our own contracts that supersede U's.

researchediting
Community Guru
Douglas Michael M Member Since: May 22, 2015
20 of 37

@Charles K wrote:

The bottom line is that nobody knows when the ownership of a work done under a contract here transfers to the client,

Upon receipt of payment.

 

and nobody knows what happens to that ownership in the event of a refund.

 

This question was answered earlier. The seller cannot unilaterally issue a refund and buy back the sold work. If the client seeks a refund, they relinquish rights to the work.


and basically the entire matter is left for the parties to figure out because Upwork now refuses to take a position.

 

The “position” they took before was an overreaching assignment of all rights to the client, contrary to copyright law.

 

Why was this change made? Also unknown.

Because it made business sense to Upwork. By chance, it’s of benefit to providers.


Nearly all work occurs here under Upwork's TOS, not the vaguaries of "law and custom." Since the parties are almost never going to even discuss this in advance, it is the same as any other situation where assumptions are made and communication doesn't occur: it will lead to conflict.

You bifurcate. The work occurs under Upwork’s TOS and all applicable law. The more professional the client, the more custom may come into play, and the easier the necessary pre-work negotiations will be. How other people conduct their business is not my business.

 

You think that's a step forward? Fine. I do not. I dislike a lack of clarity. I dislike clients and freelancers operating under ill-defined conditions. And I see no reason why this issue should not be covered in the TOS here just like so many others are.

Because it was never Upwork’s place to impose such an ill-considered contravention of copyright law. They no longer do so. Rejoice!

 

"Law and custom" often do not properly handle changes in transactions as a result of technology. That's why new laws sometimes have to be made.

 

As they are. Witness the Digital Millennium Copyright Act.

 

It is for that reason that gray areas -- like work done on sites such as this, and what happens in the event of a refund -- need to be hashed out, not ignored.

 

Indeed they do, in accordance with copyright law and the protocols of publishing - not according to an ill-considered and overreaching imposition by a supposedly disinterested market mechanism.

 

"Law and custom" sounds an awful lot to me like "the two parties each do what they want and if one of them has a problem with the other, they hire a lawyer."

 

Actually, that’s much more like Upwork’s current position on the ToS: “Don’t like it? Don’t understand it? Lawyer up!” Luckily for creatives, the absence of Upwork’s interference does not leave us howling in the wilderness. We have copyright law and standard industry practices to go by, and to make as explicit as we need to.

 

Again, I don't see this as a step forward compared to the simple clarity of a TOS rule to which both parties agree as a condition of using the site.

 

Even when that simple, clear rule is both wrongheaded and contravenes established law? Upwork confirmed on numerous occasions that its “rule” was not a condition of anything - creatives and their clients have always been free to write their own terms on ownership and rights.

 

PS You've been involved in publishing marginally longer than me, but only marginally. I am also probably one of the few people who's been involved in a copyright lawsuit against a major company and spent a lot of time discussing IP law and principles with a lawyer who specialized in this area. None of this is any more relevant to the matter than your past history, mind you. But I didn't just fall off the turnip truck.


Nor did I ever suggest as much. If I have been explaining things you already know, it is because you have been consistently seeming to profess not to know them, or even to claim they are unknowable. 

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