Re/thinking property and appropriation, with and beyond ‘norm’ and ‘gift’

Emerging partly from concerns for the overprotection of intellectual property, a growing body of socio-legal scholarship emphasises the viability and desirability of protection for creative works through social norms, whether instead of or alongside copyright law. In fields like fashion design, ‘low-IP equilibria’ safeguard incentives for creativity and innovation through normative convention rather than the legal copyright commonly presumed prerequisite (Raustiala and Sprigman Reference Raustiala and Sprigman2006). Lacking overbroad legal protection against ‘copyright infringement’, industry norms might draw finer distinctions that reward innovative borrowing while punishing plagiaristic borrowing (often through social sanctions to reputation). While fields without strong legal protection put such norms into sharpest contrast, in other fields normative regimes are carved out from within the rule of copyright law. Thus open-source software is developed under licenses that protect against proprietary commercialisation, while formalising norms of collaborative user-led innovation (von Hippel Reference von Hippel2006). Anarchist publishers use copyright to protect against commercial republication of their work, but leave authority over borrowing and copying to user norms (Halbert Reference Halbert, Ghosh and Molloy2011). Similarly, Schultz (Reference Schultz2006) shows how jam bands (like Phish) and their fans enact and enforce norms for live taping and tape-sharing that allow much more expansive access than copyright law. Across different fields with different relationships between normative and legal regimes, this scholarship argues that norms strike a practicable balance between control and access, and a better balance than copyright law, more favourable to the value of more open appropriation.

While studies in popular culture fandom share very similar interests in that value, their different contexts and concerns cast normative regimes of copying, and their relationships with legal regimes, in a different light. Fan studies recognise conflicts between normative and legal regimes, for example, in which authority over copying becomes problematic. Jam-band fans copy and share live performances in a normative regime carved out by bands' consent; other property-holders might not share their tolerance. When George Lucas re-edits Star Wars so that Han Solo shoots Greedo in self-defence rather than pre-emptively, a fan might claim some authority to trade unauthorised copies of the original, as a work in community custody mishandled by Lucas. But that authority is much more precarious and problematic than the jam-band fan's, in its potential opposition to a property-holder's legal authority. Fan studies also emphasise how social norms of appropriation and recirculation reflect and enact social relations within fan communities. In contrast to copyright's protection of economic interests, when a fan fiction writer tells and shares new stories of Solo and Greedo, her labour is rewarded through in-field credit, rather than sales. And if another writer borrows too freely from those stories, her affront is to the first writer's reputation, which is remedied by her own diminished reputation. In the predominant conceptualisation of this contrast, fandoms and other communities of sharing exemplify anthropological models of a ‘gift economy’ – in which things circulate as incompletely alienable tokens of social relations rather than alienated and asocial commodities, in exchanges mediated by the currency of social meaning rather than money (for a review of anthropologies of the gift, see Appadurai Reference Appadurai and Appadurai1986; for a fan studies synthesis, see Jenkins et al. Reference Jenkins, Li, Krauskopf and Green2008).

Concepts of norm and gift offer compelling ways to construct and approach property and custody in archival hardcore blogs. At the same time, however, archival hardcore blogs suggest opportunities to refine their application. In a critique that might speak just as pointedly to the contrast between norm and law, Arjun Appadurai (Reference Appadurai and Appadurai1986, p. 11) diagnoses an ‘exaggeration and reification of the contrast between gift and commodity’. These oppositions are even further polarised by their strong politicisation. ‘Norm’ and ‘gift’ are often mobilised as polemical concepts, advanced within or alongside forceful defences of appropriation and forceful challenges to property (like free-culture movements and populist cultural studies). In different ways and to different extents, this force risks oversimplification, in idealising the social life of appropriation while diminishing the legal and economic life of property.

First, discussions of norm and gift tend to flatten the complexity and variability of appropriation's sociality, when those concepts are taken up as theoretical answers rather than empirical questions. In a suggestive counterexample, Rebecca Tushnet's (Reference Tushnet2007) analysis of authorship and ownership in online fan cultures might owe its fine grain partly to its relatively unprincipled empirical orientation, informed by but not aligned with ‘norm’ and ‘gift’. In contrast, Schultz sets out to show norms of reciprocity between jam bands and their fans, but gives only a superficial account of the social organisation through which fans follow and negotiate them. Framing both practices as gift economies, Robert Burnett suggests that ‘massive file-sharing can be understood as the contemporary equivalent of trading bootleg tapes’ (Burnett Reference Burnett, Consalvo and Ess2011, p. 447). If file-sharing is indeed more like tape-trading than market-based exchange, this point exemplifies gift-talk's tendencies toward context-insensitivity. Anthropological accounts emphasise gift-giving as a relation across proximity, as an expenditure within an economy of scarcity (rather than digital reproducibility), in which gifts are only incompletely alienable from givers. (If critics have rightly questioned property-holders' rhetoric of ‘piracy’, we might also question the rhetoric of file-'sharing'.) Although these difficulties in translating gift-talk to the web most often go unremarked, when confronted they tend to be dissolved in contrasts between gift and commodity, rather than resolved in more context-sensitive conceptualisations of the gift (e.g. Currah Reference Currah2007). For my purposes here, differences between file-sharing and tape-trading seem more salient than their similarities, and music blogging is marked by salient differences from both.

Second, discussions of norm and gift tend to slight the ambivalence and contestation within appropriation's sociality. Scholarship on normative regimes of copy regulation has aimed to show that norms work, leaning strongly toward accounts of consensus and equilibrium. Again, this orientation risks underplaying conflict and disequilibrium, evading questions of a given set of norms' authority in relation to laws as well as other sets of norms. Arguing against presumptions of custom's authority in intellectual property law, Jennifer Rothman offers a more symmetric view: ‘While some scholars have suggested preferring IP users to owners, I see no reason to favour one-sided customs regardless of which side is preferred’ (Rothman Reference Rothman2007, p. 1972). While Rothman imagines an achievement of economic optimality, she instructively marks the contingency and contestability of normative authority. Even within a community of users, a given set of norms might serve some better than others. If fan studies are more sensitive to antagonisms between gift and commodity economies, they share a similarly optimistic view on consensus and equilibrium within fandom's gift economies – often unreflexively celebrated in contrast with commodity economies. In an important counterpoint, Matt Hills argues for approaching ‘any given fan culture not simply as a community but also as a social hierarchy’ (Hills Reference Hills2002, p. 46; original emphasis). Hills' Bourdieusian approach offers a helpful radicalisation of gift-giving, as a competition for status that mirrors as well as contrasts competition for profit (Bourdieu Reference Bourdieu1993). In contesting status and the rules by which it accrues, archival hardcore bloggers raise conceptual tensions between the stratified gift economy and a social life of appropriation imagined as benevolent community.

Third, this idealisation of appropriation's social life travels alongside a delegitimation of property that limits it to an inauthentic legal and economic life. Leyshon (Reference Leyshon2003, p. 549) finds it ‘ironic’ that Dr Dre joined the copyright suit against Napster after rapping ‘Fuck the Police’, exemplifying widespread caricatures of ‘copyright capitalism’. But this irony presumes equivalence between laws protecting creative works and antagonising young black men. Despite unconvincing protestations that ‘[i]t's far too simple and inaccurate to declare that copyright has been a white thing; sampling, borrowing, or quoting has been a black thing’, Siva Vaidhyanathan (Reference Vaidhyanathan2003, p. 4) champions a folk culture of ‘African-American and American oral traditions and anti-authoritarian predispositions’, opposed to ‘a legal framework drawn up by British noblemen’. But simple preferences for legally unauthorised appropriation over legally authorised property oversimplify. Often ‘the free’ is not simply aligned with ‘the good’, as when indigenous knowledge is exposed to free exploitation as commons (Hemmungs Wirten Reference Hemmungs2006). Sometimes laws protect appropriation more strongly than norms, offering resources for contesting restrictive normative regimes and the inequitable social relations they foster (Rothman Reference Rothman2009). And sometimes things made and held as property lead social lives beyond the spheres of law and economy. For Nicholas Blomley, the garden shows the ‘entanglement’ of legal and economic privacy with social relationship: ‘the garden is the definitive statement of individuality and privacy. [… But] popular discourse, garden design, and municipal law exhort and compel the private owner to garden for public ends’ (Blomley Reference Blomley2005, p. 632). If the garden gives an idiosyncratic view of property, it resonates strongly with views of popular culture as a scene of social authorship and social ownership (like those that inform fan fiction writing). For Blomley, however, the social life of property is simultaneous with its legal and economic life, rather than a discrete (and privileged) space of practice (Blomley Reference Blomley2005, pp. 645–56). As Catherine Fisk (Reference Fisk2002) shows, even within commercial cultural industries, credit is often as compelling (and contested) a currency as cash. For John Caldwell (Reference Caldwell2009), celebrations of ‘new’ audience practices associated with online gift economies neglect their precedents in ‘old’ industry practices; legally or illegally, studios appropriate as avidly as movie-going fans. Paralleling Appadurai's (Reference Appadurai and Appadurai1986, p. 13) concern for the movement of things back and forth between indiscrete commodity and gift situations, Blomley's metaphor of entanglement complicates discrete spatialisations of law and norm, as if one lies here while the other there. The second main part of the paper pursues these entanglements in relations between bloggers and property-holders; the next part explores the economy of value and credit in relations among bloggers.

Making value, taking credit, negotiating custody

Bloggers participate in the value of the music they circulate, implicitly or explicitly affecting otherwise private property with their own custodial interests. Near some kind of degree zero, many bloggers emphasise their personal use-value, in diaries of music-centred experiences. Like ‘they're playing “our” song’, ‘this show moved me’ might carry negligible force as a stakeholding claim, but it helpfully starts to mark some of the remainders in concepts of the work as legal property, like the listener's affective investment (Rodman and Vanderdonckt Reference Rodman and Vanderdonckt2006). While also lacking legal force, other claims might carry more normative force within an in-field system of status. Very broadly, status accrues largely according to the obscurity of the works appropriated and the labour that adds value to their recirculation. However imprecisely or implicitly, status is reflected by in-field recognition. Thus blogs often frame comments as a currency of exchange: the blogger Am I Mean displays a woodcut of inquisitors and a victim on the rack, captioned ‘[t]his will happen to you if you download something and leave no fucking comment!’. Some comments seem worth more than others. Despite ideals of proximity and parity between producers and audiences, bands and labels hold special credibility, which might be shared in approving comments. Similarly, comments from other bloggers (and references on their own blogs) might frame a blog as a key node in a social network – as a member of an in-crowd. Again, it bears emphasis that this system of status follows particular rules of stratification, rather than reflecting any perspicuous value. In contrast to Am I Mean's high status and long comment sections, some blogs' pleas for comments suggest an isolated desperation, while other blogs seem to have no concern for recognition. Status correlates strongly with a commitment to norms of appropriation and recirculation; winners enact, enforce and contest the rules of a game in which their positions win. Rather than reifying a hierarchy of archival hardcore blogs, then, I want to emphasise an uneven progress of normative regulation that leaves much room for negotiation. In tracing bloggers' negotiations in value and credit, this part follows three themes: historiographic preservation and curation of subcultural heritage; creative and technical labour; and intersections between blogs and other systems of recirculation.

In one kind of claim to custody of musical works, many archival hardcore blogs aim to preserve and curate a subcultural heritage:

Despite improbably broad constructions of ‘educational purposes’, these formulations indicate a value at least accountable within the law; the archive's (perhaps transformative and recontextualising) value for a community exemplifies the kind of positive externality protected as fair use. But historiography is more than a thin legal alibi for grey-market recirculation of past music. Many bloggers participate in a coherent historiographic collaboration, referencing not only fellow blogs, but also online archives like the Digital Fanzine Preservation Society (‘Saving hardcore & punk's history one zine at a time!’) and the Hardcore Archaeologist (a depository for even more ephemeral documents). Like ‘lay’ historians in other music subcultures, hardcore bloggers produce credible history. While some rely on online references like All Music Guide, others weave material from more inaccessible secondary sources (like other blogs, zines or print and video histories), fragments from their own memory, or original interviews that approach oral history. Word counts often run into the thousands; one post at Last Days of Man on Earth runs to over 10 thousand (18 January 2009). Within such a field, when themaninthemoon blog appropriates radio shows to provide them an archival ‘home’ (4 September 2008), it makes a strong claim to (almost literal) custody. Lacking a strong author-owner, radio shows exemplify the difficulty of constructing historical hardcore music as private property; themaninthemoon's metaphor of homelessness resonates with notions of an ‘orphan work’ without an easily identifiable property-holder (and here, without a registered copyright), arguably more open to unauthorised appropriation as fair use. Whether in regard to orphan works or the value of the archive, questions of fair use are mooted by bloggers' avoidance of formal law. But their availability and plausibility suggest the strength of bloggers' authority within subcultural norms of communal custody.

Norms of communal custody also inform historiographic styles in archival hardcore blogs. In Michel Foucault's (Reference Foucault1972, Reference Foucault1977) terms, they often undermine the sovereign author's authority as a way of organising statements, framing authorship and ownership as organised effects rather than organising causes. Of course stronger models of authorship hold persistent authority: blog entries refer to works in a band oeuvre, and their appreciation often slips into romanticisation. In a romanticising post on Walter Schreifels, however, Zen and the Art of Face Punching concedes that ‘having “heroes” in the hardcore scene is a faux pas’, and qualifies a further comment with a self-effacing ‘TOTAL FANBOY ALERT!’ (18 September 2007). Even the qualified authorial authority that Zen allows Schreifels withers in a post at Last Days:

Last Days emphasises the determinacy of institutions in cultural production. In giving Real Enemy an objective stature, it stops short of a radically constructionist model of authorship. But notably, Real Enemy's stature supports Last Days' own, as an institutional resource for making (revisionist) history. Here and especially in recoveries of even more obscure and ephemeral works, blogs are less beholden to bands than bands to blogs. Reaching closer to a radical constructionism, Good Bad Music for Bad Bad Times grasps even more forceful authority:

More than Last Days, Good Bad Music rejects the authority of the sovereign author, putting considerable weight on the authority and productivity of the listener. If the blogger-historian's authority finds support in Foucauldian theory, such authority might already follow from a subcultural common sense well versed in the multiplicity of organising principles (from artists to scenes, clubs, producers, studios, movements, and so on). Whether more theoretical or commonsensical, this historiography of cultural production gives strong support to bloggers' claims for custody.

Alongside values achieved in the outcome of bloggers' work, the creative and technical labour in the process of such work traces out more concrete forms of value, and credit. More than what blogs do (for individuals or communities), what bloggers do traces out complex performances and negotiations of norms, based on limited rights of attribution and even exclusivity. One loose cluster of norms follows conventions of historiographic sourcing. In borrowed verbal and photographic descriptions, more rigorous attribution correlates strongly with a blog's status, and the source's position inside rather than outside the subculture (here see also Tushnet Reference Tushnet2007, pp. 157–60). Blogged and Quartered cites a label website for discography information that many would take as non-proprietary fact (27 August 2009). Old, Fast and Loud credits and praises the online zine from which a photograph was ‘stolen’, even promising to check the name of the photographer (23 May 2010); the wry ‘stolen’ marks a notable distinction between norms of attribution and permission. In contrast, lower status blogs tend to rely more on outside sources (like All Music Guide or Wikipedia), with less rigorous attribution.

Going further, many bloggers respect an authority of priority. This authority partly follows norms of attribution in collaborative historiography; I Have a Brain in My Ass posts on a band's late work, and acknowledges Good Bad Music's post on earlier work (12 January 2008). But it also comprises a more forceful privilege to limited exclusivity. Not surprisingly, given its force, this privilege sometimes goes more recognised and negotiated than simply respected. Although ‘pretty sure some of the other blogs out there have posted this’, Killed By Death justifies its own post with the due diligence of an unsuccessful search (2 August 2006). Good Bad Music considers duplicating another's post to offer a better rip, writing jokingly but suggestively, ‘[w]hen I post this, the guy from 7inch punk will definately hate me and never ever gonna link my site to his[. … O]kay, I will post it’ (3 November 2006). Conversely, Chubbymix opts out of such economies: ‘It should be noted that many of these albums may be posted elsewhere. However, this blog was created with the purpose of easily exposing my friends to new music, so please excuse the repetitions’. Other blogs might duplicate without excuse, or without awareness of any noteworthy cause for one. If privileges of priority are often broken, bent and knowingly or unknowingly unrecognised, however, they reflect strong claims to custodial authority – in the potential to exclude others from appropriation, and in referring to a value of originality strongly articulated with creative authorship.

As a kind of handiwork, the labour of collecting records and tapes, ripping them into digital forms, scanning covers and lyric sheets, and uploading files supports its own claims for attribution and exclusion. Punk Not Profit notes the labour of collecting: ‘Some of us put a lot of work into tracking down certain records’. Importantly, collectors might not only collect mere copies; for scarce records whose masters have gone missing, physical property in the copy approaches intellectual property in the original (even many official reissues are taken from vinyl rather than original masters). Ripping from vinyl or tape implies significant labour on its own; for Vinyl Punk, ‘[a]ll the Records on this Site were ripped by myself from [vinyl] to mp3 Files so be a little thankful and […] drop a line in the guestbook’. Some blogs go further to suggest a craft of ripping: Good Bad Music and its commenters tout the quality of its rips; Blogged and Quartered and Old, Fast and Loud note electronic ‘cleanup’ of live and demo tapes. Although largely mechanical, uploading files to a host also culminates bloggers' work, in a form most susceptible to misappropriation – whether with thin, blanket credit, as when Welcome to Solitude acknowledges that ‘the materials on this blog is not my upload,,,i gather from another source on the net,,,many thanx to original uploader’; or in aggregated ‘link dumps’ on discussion boards or other blogs, erasing any labour and authorship. Punk Not Profit asks for and also demands regulated re/appropriation: ‘If anyone wants to repost our links, please link back to our blog’; its MP3s are also tagged ‘PunkNotProfit’ in genre metadata (information piggybacked onto the MP3 sound file, along with the ripper's description of artist, album and so on, which circulates with the sound file unless removed or altered). Most blogs post their files in compressed and sometimes password-protected RAR or ZIP archive ‘containers’; Crucified for Your Sins protects its archives with its name as password, and icoulddietomorrow's unpack in folders with the blog's name. In each case, bloggers effectively assert a technologically enforced privilege of attribution.

If bloggers' work supports claims to strong privileges, those claims might be negotiated as well as respected, in ways that occasionally provoke fascinating disputes – progressing according to the severity of the perceived misappropriation, the relative status of the quarrelling bloggers, and their relationship. Dressed for the H Bomb offers a lesson in pre-emptive conflict resolution, supplementing attribution with praise and (another) disarmingly wry reference to theft: ‘Kill From The Heart is such a great site that I stole the scan from ’em' (29 August 2006). In contrast, Anthems from the Alleyways seems to have been chastened for uncredited appropriation: ‘I hastily uploaded these posts that I forgot to mention the source for the CD cover and also for the person who gave me the copy of this comp[. … M]y sincere apologies […] for omitting the credits they truly deserve’ (25 July 2009). Across less of a status imbalance, Am I Mean and Prime Directive engage in tense brinksmanship:

This exchange neatly captures the contingency of custodial authority as a social relation. If rips and scans might be exclusive, freely appropriable or appropriable with permission, attribution or other condition, Am I Mean and Prime Directive seem to struggle over how closely they should be held, in turns of seemingly somewhat disingenuous generosity. Ultimately, they allow collecting to cap their dispute; unlike Blogged and Quartered and Good Bad Music, they remain on one another's blogrolls.

In a Blogged and Quartered post entitled ‘Updates, Thank You's, and Fuck Off's’ (26 May 2009), the latter go to Good Bad Music, which declined a blogroll link-trade partly for concerns of misappropriation: ‘Why should I bother trading links with you when you post my rips on your blog?’ (in Blogged and Quartered, 26 May 2009). Blogged and Quartered countered that the rips had been stripped of provenance in multiple message-board repostings (26 May 2009). Good Bad Music acknowledged this point, but only within a more sweeping critique of a ‘download mentality’:

But back at Blogged at Quartered:

Of course this renunciation of credit seeks credit, and reference to a pissing contest reframes rather than refuses contestation, between high-status blogs strongly invested in their own normative authority.

Rather than simply opposing free and regulated appropriation (Blogged and Quartered renounces credit for itself that it scrupulously gives others), this conflict of norms captures the ambivalence of new forms and new scales of online recirculation, superseding more discriminate face-to-face (or mailbox-to-mailbox) circles. Not far from Good Bad Music's concern for ‘pitiful full-download-of-everything’ blogs, Mosh Eisley distinguishes itself from ‘blogs who only give a download link, no information and perhaps the tracklist if you're lucky: In our opinion this has no soul to it. […] This makes the music and message less important […]’. In devaluing such practices of appropriation and recirculation, similar to those in more predominant forms like peer-to-peer file-sharing, Mosh Eisley seems to express anxieties for hardcore music's commodification or massification. Good Bad Music's own account of a consumerist download mentality seems even further to engage classic arguments in Marxist aesthetics – from Marx's own critique of fetishism as erasure of the stamp of labour, to Benjamin's revaluation of mass reproducibility as democratisation. In their recirculation online, musical works are transformed, and different norms of recirculation imply different kinds of transformation. Even before listeners assume a download mentality or any other, hardcore music might keep or shed the stamps of its subcultural production contexts (some of which comprise implicit or explicit commentary on mass culture, in lyric sheets, handmade sleeves or even photocopied sleeves). Neither keeping nor shedding is unambivalently for the better or worse; rather, the web activates tensions in hardcore subculture, which Good Bad Music, Blogged and Quartered and others negotiate at the level of norms of appropriation and recirculation.Footnote ³

In closing this part, I want to briefly contextualise bloggers' negotiations of custody in relation to adjacent fields (for a more developed discussion of bootlegging and tape-trading, to which much of this paper might represent a footnote, see Marshall Reference Marshall2003). If message-board reposting launders the provenance of Good Bad Music's rips, message boards might also regulate more strongly. Like the internet relay chat boards from which they descend, they implicate a discrete community of membership; registration might be required for posting, and download links might be unavailable to unregistered lurkers, or even to members without sufficient ‘payment’ to the community in kind or credit. When the blog BlackNoise and BastardSounds asks visitors to ‘[l]eave comments and don't Leech’, it stretches the sense of leeching across fuzzy but salient differences between message-board posting as smaller-circle sharing and blogging as broadcast (or narrowcast) publication.

Large-scale boards might indeed launder provenance, but blogs might also weaken appropriations held more closely in other regimes of regulation. Rocket Science posts a bootleg compiling rare seven-inches; Good Bad Music comments to claim responsibility, sharing memories of its laborious production (like folding its ornate cover); Rocket Science jokingly asks whether the post should be removed (10 March 2009). The amicability of their exchange smoothes over complex problems of custody, like the bootlegger's claims to the rare appropriated work, and the work of its appropriation. A taper implies similar questions in requesting that Symphony of Ghosts remove a reposted live show (4 November 2009; the request was honoured without ceremony). Antithesis notes shifts in recirculation norms from offline tape-trading to online blogging, in plugging a friend's blog:

Across different economic models, tape-trading implies relatively typical economic transactions, between two participants who trade at least minimally rivalrous, excludable and closely-held values (with valuable access to the soundboard, for example, I might tape a show, whose trade value diminishes with its propagation, limited by technological constraint, norms against promiscuous duplication and my own trading forbearance). As Antithesis suggests, these values are eroded in non-exclusive web publication. Once again, my aim is not to resolve any ambivalence in this erosion, as if normative regimes in tape-trading (or any other system) might be determined better or worse than in blogging. Rather, I want to emphasise the specificity and contingency of any such regime, and the potential heterogeneity and incoherence across regimes.

Negotiating custody and property

Bloggers might maintain more straightforwardly regulated relations with property-holders than with one another – ones stabilised by the disparate force of their respective authority. But if law's force leaves bloggers beholden to property-holders, their relations also carry undercurrents of normative contestation. Buddha Khan acknowledges property-holders' legal authority, but insists on its own countervailing normative authority: ‘If you're an artist and I've uploaded your music, and you don't want it up, I'll remove it. I reserve the right to tell the people’. Conversely, property-holders' claims comprise normative as well as legal dimensions; Buddha Khan's authority might fade against property-holders who would rather their property not circulate without lyric sheets. This part follows four moments in the regulation of relations between bloggers and property-holders: a legal framework whose informalisation constructs property as a normatively regulated relation; bloggers' ambiguous deference to property-holders; their potentially contradictory presumption of property-holder tolerance; and the realisation of this potential, in explicit confrontations between bloggers and property-holders.

Like many forms of online appropriation, archival hardcore blogging is regulated most decisively in US law according to Section 512 of the Digital Millennium Copyright Act. For service providers without editorial responsibility (like most bloghosts and filehosts), §512 offers immunity from liability for copyright infringement by their customers (like bloggers), provided they take down infringing material on notice from property-holders. This notice-and-takedown system is much reviled as a de facto deputisation of private property-holders, unconstrained by safeguards of formal legal process – in what Wendy Seltzer (Reference Seltzer2010, 177–187 and passim) calls ‘prior restraint by proxy’. For some indie blogs above the underground, longstanding concerns crystallised in a rash of dubious deletions by Blogger, after which bloggers complained that offending songs were posted with label permission (Sigal Reference Sigal2010). More than simply a violation of trust in label relations, this ‘blogicide’ marks the awkwardness of property's bureaucratisation. Property regulated inconsistently by promotions departments and business or legal departments is regulated with precarious normative authority – not least in the mere facts of departmentalisation and corporatisation, perceived to displace more authoritative modes of ownership (like the artist's authorship). Given such risks to their credibility, some labels sought a softer side to the DMCA's informalisation, subcontracting enforcement to the ‘Web Sheriff’, whose congenial notes to bloggers meander across the frontier between norm and law.Footnote ⁴ After expressing gratitude for one blog's support, and before apologising for the formality of closing legal boilerplate, for example: ‘The New Pornographers and Matador Records are not at all against free music BUT, at the end of the day, it should be (and is) the artist's decision’ (in Said the Gramophone, 10 September 2007). If the Sheriff entangles legal and normative authority most notoriously and explicitly – ‘it should be (and is)’ – other practices of enforcement (and non-enforcement) suggest even more complex entanglements.

For Tim Wu (Reference Wu2008), §512 effectively enacts a normatively demarcated class of tolerated uses, in the shades of grey between fair uses and (untolerated) infringing uses. In ‘opt-in’ selective enforcement regimes like notice-and-takedown systems, where by custom users might enjoy some kinds of borrowing without property-holder interference, rights-claiming notices performatively constitute other kinds as untolerated infringements, after the fact. No bright legal lines distinguish appropriations legally actionable in themselves from appropriations constituted as actionable only by action taken against them. Rather, Wu suggests a specific and coherent class of appropriations constituted as il/legitimate by selective enforcement under §512, according to normative conventions. In effect, §512 gives legal force to property-holders' preferred norms of in/tolerance. Even further, it allows them considerable discretion as to how they enforce those preferences. With or without a notice-and-takedown system, they might send legal cease-and-desist letters. But they might also send formal takedown notices to bloghosts or filehosts, or informal requests to bloggers (by email or even more informally in comments). All of these interdictions refer to the force of law. But in their oblique reference, and their minimal claim for redress, more informal requests refer to a more normative and relational authority: not ‘This appropriation is illegal’, but ‘Let it henceforth be known that we do not tolerate this appropriation’. Again, §512 might shift property-holding toward an informal social relation, ruled by normative convention negotiated against a determinate legal background, but by no simple application of ‘the’ law.

In practice, such negotiation largely follows property-holders' authority and bloggers' deference. Almost universally, welcome mats solicit informal requests to remove offending material. Like Buddha Khan, some blogs defer backhandedly: ‘Don't be an asshole and threaten us, we'll just laugh at you’ (Blog is the Bastard). But such notes of resistance touch the formality of property-holders' claims more than their legitimacy, and many more bloggers defer with notes of enthusiasm that echo Good Bad Music's concern for an online corrosion of subcultural values: ‘if we do not support the music we love we will only end up hurting ourselves’ (BlackNoise and BastardSounds); ‘You are encouraged to buy music and support artists and labels. Having been an artist, label, and consumer, I can't tell you how important this is’ (Memories of Tomorrow). Together, welcome mats compose something like a collage of fair-use ‘best practices’ (Aufderheide and Jaszi Reference Aufderheide and Jaszi2011): posting out-of-print works, for avowed historical purposes, and so on. These factors are not dispositive nor even especially persuasive in fair-use determination; but more than asserting legal claims, they seem to propose norms of relative toleration. When straying from these norms, bloggers might seek permission before the fact. With band approval, Blogged and Quartered includes commercially available material in a post compiling unreleased work (28 May 2009); with label approval, One Base on an Overthrow streams selections from commercially available releases (‘they're not downloadable, but jeez, not everything can be free’; 19 June 2010).

If such disambiguation follows more frequently from after-the-fact sanction than before-the-fact permission, bloggers most often accept informal requests for removals with equanimity: ‘[i]t was brought to our attention that Palefire's EP ‘Last Breath’ is still available through RevHQ. I have taken it down as a request so please check this link to order the record' (Stuck in the Past, 8 November 2009). Even with before-the-fact label permission to post an out-of-print release, Last Days complies amicably with an amicable request for removal from a band member with copies for sale. Despite those extenuating circumstances, ‘let it be said that artists rights are important for [Last Days] and I do appreciate the contribution Henry has made to the good of humanity so buh-bye to Other Music’ (18 January 2009; Other Music's Hank Rank had sounded appreciation for the original post's own contribution to the ‘good of humanity’). Such deference to artists' rights suggests the force of their normative authority, beyond the force of law.

Within a regime of regulation at a remove from formal law, however, bloggers are not beggars in negotiating property conventions; even the primary norm against posting commercially available releases is followed flexibly, even among higher-status blogs. The opt-in enforcement regime allows bloggers to presume tolerance until notified otherwise – effectively claiming a limited but substantial squatter's right. Thus a suggestive imprecision follows Down Underground's announcement that ‘[w]e would be more than glad to remove anything infringing’. Lacking permission or licence, everything on the blog infringes. However, in any conflict with property-holders, legal questions of infringement largely devolve into normative questions, in which bloggers hold considerable authority. Whatever the authority of artists' rights-claims, they might be countervailed by bloggers' claims – as listeners, members of a subcultural community, or even participants in a free culture of online sharing. Most often, any tensions between such claims are resolved within prevailing norms, whether substantive (‘untolerated appropriations carry minimal fault if remedied by requested removals’) or procedural (‘removal requests carry minimal offense if they tread gently and respectfully on countervailing custody claims’). Sometimes, however, those norms fail to contain tensions between claims, demonstrating the persistent contestability of property and appropriation as social relations.

In a relatively early procedural conflict, Something I Learned Today takes exception to a request to remove a post of out-of-print Effigies material. ‘It's the absolute right of the band to request I remove the files. No gray area there. They are the copyright holders and I'm not. Fair is fair. […] What got me was the dickless way this was handled’ – in an impersonal email closely resembling a cease-and-desist letter, though without explicitly citing the force of law (11 May 2005). Thus Something I Learned concedes the band's legal authority, but challenges its normative authority. Like the post itself, comments focus on questions of procedural norms. One acknowledges more substantive normative questions (like whether blogging helps or harms artists), but sees them mooted by procedural questions: ‘Potentially interesting debate, I suppose, but I don't really want to ruffle anybody's feathers … unless they're assholes … which I don't believe the Effigies to be’. Not only a subjective opinion, this belief reflects an opinion formed within a sometimes tortuous politics of subcultural capital. Seeming to recognise the band's risky position in such politics, one member's comments defend its credibility: ‘[I d]idn't know that punk rock meant giving away your music’. This contentious point might have been obviated by a warmer request for removal, but instead substantive and procedural questions become intertwined. And so the Effigy goes on to comment: ‘You assume when the band asks someone to follow their wishes to honor their copyright that the person should hate the band. We just followed what the instructions on the website directed us to do’. If somewhat disingenuous, this point neatly captures the instability of normative property relations in music blogs. Disclaimers of deference to property-holders often simplify complex and subtle symbolic relations. In interactions mediated on the web, those relations become even more ambiguous; sending a removal-request email to an anonymous blogger is a more uncertain encounter than asking a familiar taper not to record a show. Like any new mediated interaction, this early case might simply fall on the wrong side of a learning curve for conventions of communication. But it also suggests how the web disturbs conventions of subcultural community that shape indistinct and unstable relations.

A more charged if less conflicted confrontation ensued when 7inchcrust posted an in-print release from Prank Records, a label with considerable subcultural credibility and authority (20 August 2007). Ultimately, 7inchcrust apologised for lack of due diligence. But while opt-in enforcement supports conventions that demand little diligence before the fact, Prank challenge the presumption of tolerance:

This argument thoroughly entangles different modes of propertisation, juxtaposing legal and normative claims to property rights, as well as formal and informal recourses for their enforcement. More pointedly, it almost entirely excludes any possible countervailing claim by 7Inch Punk. Something I Learned agrees to disagree with the Effigies, respecting their claim while still claiming value in its own work. Prank discounts that value: in this comment, giving absolute and exclusive priority to official production and distribution; in another, arguing that free online circulation corrodes rather than supports subcultural values (like Prank's own survival).

Similarly, Punk Not Profit posted an in-print re-issue of rare recordings, without acknowledging their re-issued source, and responding to appreciative comments about their scarcity with a somewhat self-serving bow to online democracy (29 May 2008). Even without touching the blog's misrepresentation of its source, comments from re-issuing label Sorry State pointedly challenges the blog's authority (first quoting its welcome mat):