**EE KB - EE Process for Copyright/Proprietary Ownership Escalations

Content posted on Upwork (i.e. job post or profile content)

Thank you for contacting us. We take reports of copyright infringement/proprietary ownership very seriously, and I’d like to investigate your report further. In order to proceed, please comply with Upwork’s Proprietary Rights Infringement Reporting Procedures to report the violation. 

It is our policy to respond to notices of suspected copyright infringement as directed in the Digital Millennium Copyright Act (and other applicable intellectual property laws). This may include removing or disabling access to material on our site that users claim to be in violation. 

Once you have completed the process of reporting the violation to our legal department, we will begin our investigation. 

Thank you, 

Content posted on a 3rd party site (i.e. freelancer claims client stole their work and used without permission (or vice versa)

Thank you so much for using the Upwork marketplace to run your business. Unfortunately, we are not able to assist with content that is posted on a third-party website. Our Proprietary Rights Infringement Reporting Procedures can only be used when content on Upwork violates your rights, in which case we can take action to remove the infringing content.

Upwork cannot provide legal advice in any capacity. If you wish to pursue this matter, please seek the advice of your own private counsel. 

For your convenience, we have highlighted some of the applicable provisions of our Terms of Service. Users are free to incorporate the Optional Service Contract Terms, which they generally agree apply if they don’t agree to other terms. Of course, users are free to negotiate different or additional terms concerning the ownership of intellectual property. The only limitation on this is that users may not negotiate terms that conflict with or purport to limit Upwork’s rights. 

Section 6 of the Optional Service Contract Terms cover intellectual property rights, for example providing that rights are assigned only when paid for by the client:

6.4 OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY

Upon Freelancer’s receipt of full payment from Client, the Work Product (except for any Background Technology), including without limitation all Intellectual Property Rights in the Work Product (except for any Background Technology), will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Freelancer has any Intellectual Property Rights to the Work Product that are not owned by Client upon Freelancer’s receipt of payment from Client, Freelancer hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Freelancer retains no rights to use, and will not challenge the validity of Client’s ownership in such Intellectual Property Rights. Freelancer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered and paid for.

Please let us know if you have additional questions. 

Sincerely, 

Complaint from someone who does NOT own the content:

Thank you very much for reporting your concerns, Proprietary Rights Infringement Reporting Procedures can be used when content on Upwork Violated your rights, in which case we can take action to remove the infringing content. 

Unfortunately, we are only able to communicate with the content owner of the exclusive proprietary right that is allegedly infringed. 

Please let us know if you have additional questions. 

Second Response (if necessary): 

Thank you for your response. I'll have to refer you back to the Terms of Service, which includes the default terms for intellectual property assignment for any contract on Upwork, whether hourly or fixed-price. Unfortunately, we are not able to advise on how the Terms of Service applies to your individual situation; we recommend reaching out to your own advisors if you have more questions.

Complaint from a client being sued for use of copyrighted material purchased on Upwork

Thank you very much for reporting your concerns. 

Upwork's role is to provide the marketplace for clients and freelancers to meet, communicate and make payments. We are not intermediaries, nor do we guarantee freelancer's work. As a client you are free to pursue a claim against the freelancer whom you paid and who delivered the work. 

Our Proprietary Rights Infringement Reporting Procedures can be used when content on Upwork violates your rights, in which case we can take action to remove the infringing content. We are not able to assist with content that is not owned directly by the person reporting the violation, unless the reporter is authorized to act on behalf of the owner of the exclusive proprietary right that is allegedly infringed. 

Per Upwork’s privacy policy, users entering into a contract with one another may request the contact information of the other party, including name, company name, phone number, and mailing address. Upwork complies with valid subpoenas but does not waive service of process. Please see the subpoena protocol for more information. If your legal counsel has any further questions, these should be directed to our legal department at: 

Legalnotices@upwork.com 

or 

Upwork Global Inc.
Attn; Legal Department

2625 Augustine Dr, Suite 601

Santa Clara, CA 95054

Please let us know if you have additional questions.

Sincerely,

Changing profile visibility to private  

a. Locate alleged infringer in OBO and prepare summary (coordinate with Trust           and Safety, as necessary)

b. Add the following CSS note to the user’s account in OBO: 

 [ACTION] DMCA takedown requested 

 [DEPARTMENT] EE

 [CAUSE] Copyright/Plagiarism/Proprietary Info Investigation

 [INTERNAL NOTES] Upon resolution of issue, profile will be set cleared, set to private, or suspended. 

 Future infractions may lead to perm suspension

c. If the infringement involves Trust and Safety, wait for confirmation of the extent      of the infringement (in some cases, automatic suspension may be warranted             after investigation); Otherwise, proceed to next step.

d. If the infringing content does not contain confidential, proprietary, or personal         information, send the following response to the alleged infringer within 24               hours (legal will provide a redacted version of the PRIRP complaint):

We have been notified according to the Upwork Proprietary Rights Infringement Reporting Policy (PRIRP) that content you have posted in your [DESCRIBE] violates the copyrighted work of a third party.  Please note that there can be serious repercussions for violating the intellectual property rights of others.   In addition, it is a violation of our Terms of Service to violate the intellectual property rights of others. Accordingly, we ask that you remove the content within 7 days.  Alternatively, if you believe this action was taken in error, please refer to the PRIRP for more information on how to file a Counter Notice. If you do not remove the content or file a Counter Notice within 7 days, we will have no choice but to make your profile private and limit your ability to submit proposals to any new projects.  Current projects will not be affected.

The user's complaint is attached.

e. If the infringing content contains confidential, proprietary, or personal                      information, mark profile as Private, send the following response, and add the          following CSS note to the user’s account in OBO: 

[ACTION] Profile changed to private 

[DEPARTMENT] EE

[CAUSE] Copyright/Plagiarism/Proprietary Info Investigation

[INTERNAL NOTES] Upon resolution of issue, post will be set back to public. Future infractions may lead to perm suspension

Response:

We have been notified according to the Upwork Proprietary Rights Infringement Reporting Policy (PRIRP) that content you have posted in your [DESCRIBE] violates the copyrighted work of a third party.  Please note that there can be serious repercussions for violating the intellectual property rights of others.   In addition, it is a violation of our Terms of Service to violate the intellectual property rights of others. Accordingly, your profile has been marked private, and your ability to submit proposals to new projects may be limited.  Current projects will not be affected. If you believe this action was taken in error, please refer to the PRIRP for more information on how to file a Counter Notice. The user’s complaint is attached.

f. Inform legal whether infringing content has been removed or a Counter Notice          has been received.

If user resolves issue and removes content without rebuttal:

a. Thank user and remind that future infractions of this nature may lead to                     permanent suspension

If user responds with a rebuttal: 

Thank you for your note. I understand you disagree with the report we received, so I'd like to take a moment to explain further. Upwork is not taking a position on the ownership of the intellectual property in this particular case, which is why you are free to file a counter-notice if you disagree with the claim. [I will clarify the way contracting on Upwork works.]  

[Please note that the default contract terms between a freelancer and client assign all intellectual property rights to the client (see Section 6 - prior versions were substantially similar), and so unless you and your client otherwise agreed, those terms applied to your contract.  You and your clients are always free to negotiate different or additional terms that work for both of you.]

Thank you again, please let me know if you have additional questions. 

1. If, after 7 days, the user has not revised the content or filed a counter-notice, set the post in question to private 
2. Add the following CSS note to the user’s account in OBO: 

[ACTION] Profile changed to private 

[DEPARTMENT] EE

[CAUSE] Copyright/Plagiarism/Proprietary Info Investigation

[INTERNAL NOTES] Upon resolution of issue, post will be set back to public. Future infractions may lead to perm suspension

If user does not resolve issue and does not remove content 

1. If there is a file to remove

a. Include details In internal notes within your ticket regarding          the removal of the file or information

b. Assign a ticket to TS as a TASK and post it in ask-ts to                     prioritize it

2. Confirm removal with Legal and send below response:

As I stated in my correspondence to you dated [DATE], we were notified according to the Upwork Proprietary Rights Infringement Reporting Policy (PRIRP) that a third party owns the copyright to the material in your profile overview.  Please note that there are serious repercussions for violating the intellectual property rights of others.   In addition, it is a violation of our Terms of Service to violate the intellectual property rights of others.  We did not receive a PRIRP counter-notice from you within the time requested. Accordingly, your profile has been set to private for violating the Upwork Terms of Service.  Please note that this will impact your ability to submit proposals to any new projects. In order to restore your profile to public, kindly respond acknowledging you agree to not violate our TOS moving forward.  [internal note: for last sentence, only use if this is his first offense.  If not, suspend user.] 

When a copyright issue arises within a dispute, the dispute team will send EE a ticket including the UID and facts on the case. 

Complaint made by someone who does not own the content 

If the reporter of the copyright issue is not the owner of the material being reported, we have no way of knowing whether the freelancer had permission to use the material unless the actual owner of the content reports. However, the client can still reject the work. 

Thank you very much for reporting your concerns. Our Proprietary Rights Infringement Reporting Procedures can be used when content on Upwork violates your rights, in which case we can take action to remove the infringing content.

Unfortunately, we are only able to communicate with the content owner reporting the violation, unless the reporter is authorized to act on behalf of the owner of the exclusive proprietary right that is allegedly infringed. 

Please let us know if you have additional questions. 

Sincerely, 

Fixed Price Contract with Escrow - Client claims plagiarism

The Client is rejecting the work product, so the recommendation should be in favor of the client or they can take the matter to arbitration. 

i.   If Legal concludes there is plagiarism, the FL's account can be closed. 

ii. But it can't be a close call - only if it's obvious and reported by the                owner of the material.

Fixed Price Contract with no funds in escrow- Client claims plagiarism 

The Client is free to pursue the dispute independently. 

iii. If Legal concludes, the FL's account can be closed.

iv. But it can't be a close call - only if it's obvious and reported by the                 owner of the material

Hourly contract, funds available- Client claims plagiarism

We should apply the usual standard review to determine whether the hours qualify for payment protection - if the work is clearly plagiarized, then we presume at least some of the hours will not meet this requirement:

The screenshots documented by Work Diaries must be clearly related to the applicable Hourly Contract requirements or Client instructions.

The Client is free to pursue the dispute independently. 

v. If Legal concludes, the FL's account can be closed.

vi. But it can't be a close call - only if it's obvious and reported by the                 owner of the material