The Dr. Seuss Controversy Validates Controlled Digital Lending
When copyright holders take a book off of the market, controlled-digital-lending may be a necessary solution
Seuss Enterprises, who owns the copyrights to the works of Theodore “Seuss” Geisel, also known as “Dr. Seuss”, had announced in March of this year that they would no longer be printing six of his books such as And to Think That I Saw It On Mulberry Street, If I Ran The Zoo, and McElligot’s Pool. They did so because they claim that the books contained racist images that “portray people in ways which are hurtful and wrong.”
Now, I’m not going to bother debating the offensive content of these books, or the character of Seuss himself, because I figure that many of you have had enough of that already. Instead, I want to look at this issue from an archival perspective. When a book goes out-of-print, it becomes harder for new readers to access, and though libraries can provide out-of-print books, they cannot always do so reliably, in which case, we may need to turn to an unorthodox solution.
Let me first make my position clear from the outset. I believe that, as a society, we should seek to make literature as accessible to as many people as possible. This means we should make as many audiobooks, print disabled books, and Braille books as we can. It also means that we should translate as many books as we can into as many languages as we are able.
Accessibility is especially important when it comes to controversial literature, as readers should be allowed to judge such sensitive matters for themselves. This not to say that we should be teaching children to read with racist material, but that older readers who want to study racism’s history or gain a wider understanding of a particular author, should not be denied access to the texts in question. Much like the performative removal of “blackface” episodes from streaming services after George Floyd’s murder, Seuss Enterprises fought racism in the laziest way possible, by whiteout and blue pencil.
Whether or not one supports their decision to put those books out of print, they have undoubtedly succeeded in making the books more difficult to read. On Amazon, copies of Mulberry Street can run up to $104, If I Ran The Zoo is at least $170, and McElligot’s Pool has risen to a whopping $200. eBay told The Wall Street Journal that they would be removing the six books from their website. While at least one bookstore, Capitol Hill Books, openly boasted on Twitter about not having any copies of the six books, and mocked those who wanted to read them.
What about libraries? Well, Colorado’s Bloomfield Library announced in March that they were removing the six books from the collections. The Chicago Public Library also announced that same month that they would temporarily be removing the books from their shelves. The Indianapolis Public Library is currently considering removal. Now, that still leaves a lot of libraries, for now, but if your library doesn’t already have them in stock, then they probably won’t acquire them in the future. There are interlibrary loans, but if a book is in high demand, then the waiting list can be insufferably long. Even if your library does have copies of those texts, when they become old or damaged, don’t expect a replacement.
For what it’s worth, Mulberry Street will enter the U.S. public domain in 2033. At that point, everyone will be able to legally download or publish their own e-book of Mulberry Street for free. That’s not too long a wait, but people shouldn’t have to wait for a book’s copyrights to expire in order to read it. Over at The Washington Post, culture critic Sonny Bunch offered a reasonable way to circumvent this:
“When an artist or an artist’s estate decides that they are no longer comfortable profiting off certain works, they should transfer their copyrights to the public domain or make them under Creative Commons’ copyright waiver. Such a decision saves an artist or the artist’s estate from the morally troubling proposition of profiting from work deemed racist (or sexist or homophobic) while also preempting suggestions that the art is being memory-holed to appease reactionary progressives.”
The trouble is that copyright holders are far too greedy to do something so sensible and altruistic. After Seuss Enterprises’ removal of the six texts, the ensuing controversy led to the sales of more than 1.2 million Dr. Seuss books. “Cancel culture” can be good for business and publishers would be foolish not to stoke the fires of controversy.
Now, it’s very common for books to go out of print, though it’s usually due to poor sales, and after having explored why traditional booksellers and libraries are a limited means of accessing these books, you might assume that I would advocate for outright piracy. Now, I have defended piracy in the past, under certain circumstances, but we need a more legally sound and reliable means of accessing out-of-print books.
At last, we have come to the idea of “controlled digital lending” (CDL). This concept means that libraries should be permitted to scan and loan out digital copies of books that they own, regardless of whether or not the publisher has officially licensed an e-book. To quote the White Paper on Controlled Digital Lending of Library Books:
“CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation. For example, if a library owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.”
How does this all relate to Dr. Seuss? Well, CDL helps ensure that those six books, despite being out of print, are preserved indefinitely through digitization. It also ensures that readers will always have convenient access to these books, either through their own library or through a digital interlibrary loan. Again, the “digital-lending” aspect of this is significant because it privileges accessibility amidst an increasingly digital world. This is particularly important for the disabled, the chronically ill, or the poor, who simply can’t afford to go the library as often as they might like. As of this writing, you can borrow five of six pulled Seuss books from Internet Archive’s Open Library, via CDL (Cat’s Quizzer remains the rarest of the six to read).
CDL, though, is not without its challengers. The Author’s Guild is among the most vocal opponents, arguing that the practice would negatively impact writer’s incomes:
“1) unauthorized scanning and e-lending of books that were previously published only in physical formats would usurp the market for creating new ebook versions; and 2) instead of purchasing library ebook licenses (which are more expensive than consumer editions for good reason), libraries would simply digitize the print book from their collection, depriving authors and publishers of important licensing income.”
These concerns are reasonable, but they miss a few important points. The first is that, through CDL, these books are lent out with a built in DRM mechanism that not only prevents redistribution, but also deletes the text after the lending period ends. There would still exist a market for those who want to own a digital book. Also, if publishers are so concerned about having to complete with CDL, then they should start to prioritize digitizing their old books. It makes little sense to have readers wait indefinitely for publishers to digitize books that have been around for ages. Access to older works of literature should not be an endless wait for Godot. In the case of Seuss, some texts will never be digitized by their copyright owners.
The Guild also worries that CDL will stop libraries from purchasing official e-book licenses, but frankly, given the current state of e-book licensing, I don’t blame libraries for taking another route. Publishers do not sell e-books to libraries for permanent ownership, as they do with physical books. Instead, they lend these books for a limited reading cycle, to quote the Washington Post:
“A library typically pays between $40 and $60 to license a new e-book adult title, which it can then loan out to one patron at a time, mimicking how physical loans work. Each publisher offers different payment models. Under one, a library only has an e-book for two years or 52 checkouts, whichever comes first. Another agreement covers 26 checkouts per book.”
As a result, licensed e-books are very expensive for libraries to maintain, and so, many good titles are lost. Amazon has outright refused to sell its e-books to libraries, depriving them of such big-name authors as Mindy Kaling, Dr. Ruth, and Trevor Noah. The Guild, of course, fails to mention any of this in their argument against CDL. They would rather defend the status quo, where greed and extortion are used to dictate how libraries should run their services.
The moment that Seuss Enterprises decided that they would pull the six books from further publication, they forfeited all rights to prevent any unauthorized digital copies. This example shows why publishers cannot always be trusted to make their literary works accessible to readers. All it took was one small decision from a copyright holder to completely upend the book market. This uncertainty should keep all of us on guard. We need the option of CDL to ensure that controversial texts remain available for readers everywhere.
