SOME MORE SPURIOUS ARGUMENTS



(1) One of the liberal ‘seminar’ Molwis presented the following argument at the seminar which was organised for tackling the ‘intractable’ concept of copyright, patency right, trademark right, and jaahiliyya rights of a variety of kinds:

“Since there prevails Umoom Balwa in this mas’alah (of copyright), it is expedient to issue a fatwa of permissibility. There is scope for permissibility in an issue of Umoom Balwa when it is not in conflict with some Nass (Explicit law of the Shariah).”

Umoom Balwa is a public state of almost total prevalence of a practice in which the entire populace is involved, and from which extrication is virtually impossible. In such instances of extensive and intensive prevalence, the Shariah allows latitude for permissibility. Consider a situation where all the water in a place is contaminated. No taahir (pure/clean) water whatsoever is available anywhere except the contaminated water pumped into the water pipes from the supplying dam. If the fatwa of prohibition is issued, then besides the futility of the fatwa it will be in conflict with the principles of the Shariah which allow for concessions and permissibility in such dire cases of need.



Some people who lack respect for the Deen sarcastically remark that if a fatwa of prohibition is issued, people will perish because without water they will die. This sarcastic stupidity has no relevance to reality because no one will ever perish nor suffer in the least bit even if a fatwa of prohibition is issued when a state of Umoom Balwa exists. People, especially the masses with terrible deficiencies of Imaan in the present day, will simply laugh off the fatwa and continue enjoying the polluted sewerage water ‘purified’ by the system of purification of the kuffaar. When Muslims are no longer prepared to refrain from consuming haraam or mushtabah expensive luxuries which even the kuffaar experts have proved to be at least injurious to the physical health, and which are not at all necessary for sustaining any dimension of physical or spiritual life, then it is superfluous to make the comment of people perishing. It is for this reason that we have said that the issuance of a fatwa of prohibition is futile when there is a true state of Balwa which can be likened to a state of emergency.



Consider another example: Almost every medicine available nowadays contains some alcohol. Total abstention for people of weak Imaan is not possible. In view of Umoom Balwa, the fatwa of permissibility will be given even though in this age Muslims no longer require any Fatwas of the Shariah to conduct their day to day affairs. Fatwas of the Shariah applied to the ‘age of orthodoxy’ of the Sahaabah and their kind, not to the present ‘enlightened’ age of technology and science when Qur’aanic verses and Ahaadith are cited in substantiation of the permissibility of sodomy, lesbianism, abortion, female exhibition and many other evils. Let us revert from this small digression to the topic of our discussion.



Umoom Balwa is a state in which indulgence in haraam or najaasat is so intensive and prevalent that abstention is either impossible or will cause real hardship which is beyond the endurance of people of weak Imaan and deficient in Taqwa. In a situation of such prevalence, there is no alternative way for the acquisition of halaal. If it is not a situation of life and death or real hardship, the mas’alah of Umoom Balwa will not apply, e.g. today interest is practised widely – intensively and extensively. Riba will not be made lawful on account of such widespread prevalence. It is not permissible to cite Umoom Balwa for abrogating the prohibition of riba. Similarly, it is incorrect to cite Umoom Balwa to proclaim as halaal the massive volume of haraam, diseased and physically and spiritually contaminated chickens processed commercially. The argument that almost all Muslims devour with relish this kind of diseased carrion has absolutely no substance in the Shariah because no one’s life is depended on devouring carrion and diseased meat. This is quickly vindicated if there is merely a scare sent up about a destructive disease raging through the chicken plants. The government will order millions of chickens to be destroyed. And, no one will perish or suffer even a tinge of hardship by abstaining from eating the diseased carrions.



Similarly, inspite of meat having become almost the ‘staple’ food in affluent communities whose the members are addicted to consuming meat like carnivorous animals, and inspite of umoom balwa existing inthe literal (not Shar’i) sense, each and every member of such societies will abandon the consumption of meat if a ‘mad-cow’ disease rumour is rife. Immediately, the entire population will abstain from devouring such meat. And, no one will perish because there are another thousand other bounties of food provided by Allah Ta’ala, which are always available.



Having understood the meaning of Umoom Balwa, the intelligent, unbiased reader will readily comprehend that the claim of Umoom Balwa in relation to copyright and patency right is truly ridiculous. Will the Muslim masses suffer undue hardship if copyright is abolished? Will anyone perish? On the contrary, abolition of copyright serves the interests of the masses in a better way. The liberal Molwi Sahib ridiculously presents the principle of Umoom Balwa in vindication of a handful of authors who are a tiny-very tiny- minority in relation to the billions of souls inhabiting this earthly globe, and who are out to earn fortunes by exploiting the masses with the stratagem of monopoly legalized by the kuffaar and labelled ‘copyright and patency right’. While everyone can understand that heaven and earth have long ago been separated by the command of Allah Ta’ala, the liberal Molwi has achieved the feat of the reunification of gigantic differences. He has managed to base the imaginary right of copyright pertaining to a handful of capitalist-inclined authors on the foundation of Umoom Balwa whose invocation is allowed by the Shariah when there is no water available for survival. This argument of Umoom Balwa for justifying copyright is a real insult to intelligence and Ilm-e-Deen. The liberal Molwi committed another error in the presentation of his argument in favour of copyright. He said: “Any act becomes permissible if Umoom Balwa prevails and there is no Nass which conflicts with it.” The condition of a conflicting Nass (explicit Shari’ law) is superfluous. It has no validity in this context because a fatwa of permissibility in a state of Umoom Balwa is required to proclaim lawful what the Nass of the Shariah has made unlawful as has been explained in the example of contaminated water and alcoholic medicine. If there is no conflicting Nass there will be no need for a fatwa of permissibility even if there is no prevalence of Umoom Balwa.

(2) Another argument presented by the liberal Molwi is not only spurious, but is downright stupid. He avers: “Furthermore, generally there is no means of earning a livelihood for those who are involved in writing books other than printing and selling their works. Therefore, copyright should be made permissible in the same way as the later Fuqaha, seeing the state of affairs, had made permissible acceptance of monetary remuneration (wages) for teaching the Qur’aan, Hadith, Fiqh, etc. If it is not made permissible, the avenue of writing books will become extremely narrow and constricted, leading to the possible closure of this avenue.” One does not require high intelligence to understand the fallacy of this argument. Let us examine each claim in this argument.



(a) Authors have no other means of livelihood other than their occupation of writing books. This arbitrary claim is devoid of substance. The rare cases of people being entirely dependent on writing books for a living, can never be a valid reason for declaring permissible what is unlawful in the Shariah. Even if we have to assume that there are some persons who are dependent on writing books for their livelihood, then too, this is not a Shar’i basis for arguing the permissibility of the imaginary copyright. Most of the authors who wrote Deeni books were pious Ulama who never reserved any book rights for themselves or for their agents. They authored their books—many books during their lifetime—while they were actively involved in other Deeni pursuits such as teaching, etc. They never were dependent on their books for a living. In fact, they did not even become involved in printing and selling the books they had authored. Others would execute these tasks and earn money while at the same time serving the Deen.



Those who printed and sold the books authored by the Ulama, also were not dependent on these books for their living. They had other avenues of earning. Even those who deal exclusively in books and stationery are no dependent on printing books for their earnings.Should there be some persons who truly are dependent on their writings for a livelihood, they are not debarred from printing and selling their books. In consequence of any competition, they may earn less. But what they will earn is the rizq predetermined for them by Allah Ta’ala. They will obtain only what Allah Ta’ala has ordained for them.



There are also a variety of means of earnings open for the authors of book other than earning by way of haraam copyright. There is, therefore, absolutely no Shar’i grounds for legalizing this imaginary right to debar others from doing what is lawful for them. It really embarrasses us to respond to this stupid argument in which an unlawful act should be made lawful for no valid reason whatsoever.

(b) Copyright should be made lawful in the same way as the later Fuqaha had made lawful wages for teaching the Qur’aan, Hadith and Fiqh. The Fuqaha-e-Mutakh-khireeen (the later Fuqaha, viz. those who flourished from the third century onwards) had ruled the permissibility of remuneration for Deeni services for a real need which had developed. They did not make such remuneration permissible to enrich a handful of authors with capitalist ideas of coining fortunes. The fatwa of the later Fuqaha was not occasioned by the need to open up avenues of earning and livelihood. Their fatwa was the effect of a state of emergency which had overtaken the Ummah.



The number of Men of true Ilm and Taqwa was dwindling. People who had devoted their lives purely for the Sake of Allah Ta’ala, teaching the Deen without remuneration for only the Pleasure of Allah Ta’ala, became an extinct species of humankind. The Fatwa of the later Fuqaha was motivated by the preservation of the Deen.

Even in the present age, almost all Molwis, Sheikhs, Imaams, Muath- thins, etc. are mercenaries. No one is prepared to teach in a Madrasah or be the Imaam of a Musjid if high salaries are not paid. Those Deeni Ustaadhs who are sincere, they too, are deficient in Tawaakul and Taqwa, hence they will rather abandon their Deeni posts and take up some mundane employment or become involved in business. Without the fatwa of the later Fuqaha, the entire Structure of the Deen will crumble.



Therefore, basing copyright on the Fatwa of the later Fuqaha is utterly baseless. While the Molwi Saheb calls for the permissibility of copyright to enable the enrichment of a handful of authors, the Fatwa of the later Fuqaha is for the preservation of the Deen. The difference should be glaringly apparent.

(3) The author or the inventor sells a haqq (right) which he has brought into existence. A publisher who has acquired possession of the manuscript or a manufacturer who has acquired the invented item by virtue of having acquired permission from the author/inventor has acquired this right.



By acquisition of the right from the author/inventor is meant the exclusive ‘right’ of printing/manufacturing as well as the ‘right’ to debar the whole world from venturing into the sphere of printing the book or manufacturing the item. But this supposition is palpably fallacious since the acquirer’s rights in terms of the Shariah are related to only the acquired copy/product which is his property..



The writer of a book or the inventor of a product brings into existence a book and a new product respectively. These are tangible assets, not rights. There is no general right which they bring into existence as has been claimed. Any right that comes into existence is related solely to the written manuscript and to the actual tangible item invented. And, whatever rights they enjoy in even their own properties is on account of the concession of the Shariah which restricts these Mubaahul Asl rights to the property within the domain of their ownership.

The teachings, principles and spirit of the Divine Shariah never condone the commission of injustice and oppression which the kuffaar concept of copyright and its associate rights entails. The proponents of copyright, patency right and Jaahiliyyah rights in general can crow and blow their horn until Doomsday, but they will miserably fail to adduce any Shar’i basis for the whimsical figments of their imagination—in fact, the imagination of the capitalist kuffaar who have grabbed all the natural sources, means and ways of earning which Islam has made waqf for all the inhabitants of the earth—for them to acquire free of charge, without payment of money, all such public assets set aside for free and productive utilization by all the inhabitants of the earth.



Explicit Shar’i daleel is imperative to prove the postulation of the extension of the author’s right to every book which belongs to others. The furthest this postulation may be extended is to the actual manuscript or book which is the property of the author. If he sells the manuscript or the printed books to others, there is no Shar’i evidence for claiming that the author has brought into existence such an all-pervading, omnipotent right which extends to the thousands of books lawfully acquired by others and which are the mielk of others over which the author has absolutely no jurisdiction and say regardless of the concepts and legal systems of the kuffaar.



Greed, injustice and avarice are inherent branches of kufr. The proponents of copyright are in reality pandering to these vile designs which are salient characteristics of every concept spawned by the adherents of kufr. The liberal Molwis have infact become the covert ministers of the kufr economic system to administer to the Ummah, by doses, every evil economic concept which capitalism and the western cult of life give birth to in their perennial and insatiable desire for more wealth at any cost. The theme of ‘confound the masses’ permeates all economic systems generated by capitalism as well as godless socialism. The only ‘daleel’ the votaries of copyright have for this fallacious and oppressive extension of ‘right’ and haraam encroachment into the domain of the other millions of people, is the kuffaar legal system. The claim they have tendered is an arbitrary postulate devoid of any Shar’i basis.

An imaginary ‘right’ or a ‘right’ spawned by the concepts of the kuffaar is not automatically transformed into a Shar’i right simply on account of its wide prevalence which they whimsically misinterpret as acceptable Shar’i Urf. There is an imperative need for a daleel of the Shariah. But the proponents of copyright have hopelessly failed to produce any acceptable daleel. They have only managed to add confusion to confusion with their wildly vacillitating interpretations of the technical definitions of the Fuqaha. Flitting from one ambiguous, in fact fallacious, postulate to another, they advance preposterous claims as if such vagaries are actual masaa-il of the Shariah. Hence, they audaciously advance claims such as ‘the author has brought into existence a right’, ‘this haqq (copyright) is maal or in the category of maal’, the author will suffer monetary loss in the absence of copyright’,

‘the right which the author has created for himself extends to the million books which are owned by others’, etc.

These claims form a chain of negations of the principles of the Shariah. In the endeavour to sustain the kuffaar-conceived ‘rights’, the votaries of copyright display an unacceptable propensity for flexibility and compromise with kuffaar concepts to the degree of fettering the Shariah to prevalent cults and customs which they erroneously classify as Urf sustainable by the Shariah.



Abandoning the Taqleed of the Hanafi Math-hab into which they were born, bred and nurtured, spiritually, academically, morally and educationally, they exceed all bounds of intellectual toleration in their insane bid to accommodate the economic concepts of westernism within the sacred Folds of Islam in the hope of conferring divine sanctity to such evil notions of trade and commerce in which the agents of kufr specialize.



In fact, in this endeavour they are akin to the mushrikeen of Arabia who proclaimed in justification of Riba: “Verily, bay’ (trade) is like riba.” Stemming from this postulate is the conclusion that riba is halaal because trade is halaal. The liberal Molwis are arguing in precise fashion. Who are they emulating? They should engage in some soul- searching and desist from posing as doctors of the Ummah with their ridiculous seminars which are tantamount to glorified picnicking. There is no goodness for the Ummah in these academies and seminars. The cardinal theme of these western-style seminars and academies is to accommodate westernism under the Umbrella of the Shariah. They, therefore, invariably look at western kufr economic concepts through glasses painted with the hues of westernism. Hence, the emphasis of their seminars is to forge Shar’i acceptance for the economic concepts of the western kuffaar.



In order to succeed in their mission, they have to necessarily prove on the basis of the principles of the Shariah that copyright is in fact a Shar’i right; that this imagined right brought into existence by an author automatically brings within its purview of constraint all the books already printed, purchased and owned by others thereby effectively abrogating all the Mubaahul Asl rights which the Shariah allows owners of property in terms of its principle of Haqq-e-Tasarruf (the right to operate in one’s own property).

Without conclusively proving that copyright is a haqq which the Shariah recognizes, all views and claims structured on the postulate that it is a right, are futile exercises in redundancy. They endeavour to elude and divert from their baseless claim of copyright being a valid right, by embarking on deceptive and elusive discussions on the definition of maal. They have not as yet overcome their very first and fundamental hurdle in their entire exercise, namely, to prove that copyright is a valid Shar’i right.



The maximum they have ventured in this regard is to put forward the arbitrary and unsubstantiated averment that copyright is a valid right because it is related to the pecuniary interests of the author. This is a ridiculous argument. It is grossly inadequate for proving the claim of copyright being a valid right recognized by the Shariah. The claim that it is related to the pecuniary interests of the author is highly erroneous because they have not as yet proven that it –this figment of kufr imagination- is a valid Shar’i right.



Only if they are able to prove the validity of copyright on the basis of the principles of the Shariah, will it be acceptable to move to the next step in the argument, namely, rights are also maal. This second step is futile as long as the first claim remains unrecognised by the Shariah. To detract from the first and main attack against their claim, the proponents of copyright attempt the diversion of the labyrinthal discussion on the Shar’i concept of maal. Apart from being diversionary, it is superfluous since the second wrung in this ladder of argument can be mounted only after having successfully climbed the first wrung. They first have to satisfactorily substantiate on the basis of Shar’i principles in terms of the Hanafi Math-hab, that copyright is a tenable Shar’i right. We take the liberty to further claim that they will not be able to prove that this kufr-spawned ‘right’ is a Shar’i right in terms of even the other three Math-habs.



Sight should not be lost of the prime constituent of the controversy. The very first contention of the Akaabir Ulama is that copyright is not a right. It is a claim without Shar’i basis. Every argument falls flat as long as the first claim remains unproven. And, without operating within the restrictive confines of the principles of the Shariah, their claims are merely personal opinions devoid of Shar’i substance.

A multiplicity of ambiguous, unfinished and unprincipled arguments presented in isolation of Shar’i principles of the Math-hab they profess to follow, has succeeded in only blurring their ideology and blunting the thrust of their so-called dalaail in vindication of copyright and the litany of other haraam western-spawned ‘rights’—riba and extortion rights.

(4) They claim: Whoever prints a book without having acquired the right from its author is in reality the ‘ghaasib’ (usurper) of a ‘haqq-e- maali’ (a right which has the status of wealth—tangible assets). Since in this case, it is not easy to prevent the ‘ghaasib’ from his usurping operation, it is permissible to hold the ‘ghaasib’ liable for paying compensation for the right he has usurped. Besides the Fuqaha of the other Math-habs, even the Fuqaha of the Hanafi Math-hab hold the view that in ‘such circumstances’ it is valid to hold the ghaasib liable to pay compensation for the usufruct (having derived benefit) of the misappropriated item such as the wealth of orphans and the wealth of Auqaaf (Trust Property).



The “such circumstances” in the context of copyright and the law of ghasab have not been explained. This supposition is a whimsical hypothesis – a groundless assumption. No evidence other than misinterpretation of certain facts has been tendered as the starting point of this argument. Let us briefly look at these groundless assertions presented as the basis of the argument.



(a) Copyright is a valid haqq. In the whole volume of ‘proofs’ on this subject the claim that copyright is a valid Shar’i right has not been proved.



(b) This right is in the hukm (legal category) of maal. This is another fiction – a fiction based on the first fiction. This second claim is likewise a groundless supposition because it is structured on the first hypothesis. As long as the contention that copyright is a valid Shar’i right has not been conclusively proved, all other effects raised on this premises are baatil (utterly baseless and misleading).



Assuming that the first contention is vindicated (which is impossible), then too, the second supposition will remain a groundless supposition in terms of the Hanafi Math-hab. The seminar Molwis have absolutely no entitlement to dig into the other Math-habs for latitude to accommodate the inordinate pecuniary cravings of a handful of authors and inventors.

(c) Whoever prints from a book which is his mielk (property) is an usurper (ghaasib) of a haqq-e-maali (a right pertaining to maal tangible-wealth).

The incongruity of the seminar Molwis is truly amazing. They are at pains in their laborious exercises of ‘proving’ that huqooq (abstract rights) are maal. They have exhausted their brains in their search for verification in the fields of the other three Math-habs. They have degenerated to extremely low levels of corrupt interpretation in their process of mutilating the Hanafi definitions in the bid to convey the fallacious idea that even the Ahnaaf believe that huqooq are maal. They have tediously struggled to present a variety of exceptional cases, which are all exceptions to the general rule and governing principle of the Math-hab, to act as basis for their imaginary copyright. Inspite of all this effort, they still find themselves in an uncomfortable and awkward position, hence they flabbily acquiesce that their much-vaunted copyright which they are flaunting as maal is a haqq-e-maali. Not maal, but haqq-e-maali.

When a couple of dozen pages have been darkened with the ‘evidence’ to prove that rights are maal, why now condescend to a lower level, viz., haqq-e-maali? It behoves the votaries of copyright to be constant in their argumentation. In their imagination they had furnished adequate volumes of ‘proof’ to bolster their claim of copyright being ‘maal’. They should now have no reason for vacillation, swinging from one supposition to the other –from maal to haqq-e-maal. But the truth is always unnerving to opportunists who do realise the deficiencies in their case, hence this dithering and infirmness.



Assuming that the printer of the book whose tasarruf is in his own mielk, is a ghaasib of a haqq-e-maali, then it is incumbent to apply the rules of Ghasab (Usurpation) to him. In his unprincipled argument, the seminar Molwi assigns the printer of the book into Kitaabul Ghasab, and brands him a ghaasib. He them makes a detour and refrains from applying the hukm (effect/law) which is applicable to one who usurps a right, a benefit or an abstract entity such as a quality/attribute.

Since, the Molwi is aware that the hukm of ghasab is in diametric conflict with his postulate, he bypasses it and cites two obscure examples which are exceptions to the general rule underlying ghasab. If copyright is truly a haqq-e-maali which has been usurped by the printer who derived monetary benefit from the book (which by the way is his own property), the Shariah does not hold him legally liable for the benefit he had derived from the “misappropriated” item. A usurper will pay dearly in the Hereafter for the ill-gotten benefit, but in terms of the Shariah there is no monetary compensation which could be demanded from him for the manaafi’ (usufruct/benefits) he had unlawfully enjoyed from the usurped item.

Regardless of the rationale underpinning this law of the Shariah in terms of the Hanafi Math-hab, the seminar Molwis have no right to tamper with it in the attempt to produce a hybrid ruling, which is untenable in the Math-hab.



If the votaries of copyright could substantiate the first premiss of their postulate, viz., copyright is a valid haqq, the effect of liability on the ghaasib of usufruct would be valid according to the Shaafi Math-hab. But, they have not proved their very primary premiss of their hypothesis even in terms of the other Math-habs. While the other Math-habs have a wider interpretation for maal, and ghasab brings in its purview liability for even usurped benefits, no grounds have been presented to vindicate the claim of copyright being a valid haqq according to the other Math- habs.



Let us assume that this feat can be achieved. Then too, it is unlawful for Hanafi Molwis to fish in the domains of other Math-habs when there is absolutely no dire need for issuing a ruling on the basis of the principles of the other Math-habs. The Deen is sacrosanct and may not be tampered with to satisfy the whimsical and pecuniary cravings of men out to coin fortunes, and in the process trample on the rights Allah Ta’ala has bestowed to the public at large.

The seminar Molwi has opened up the ghasab dimension in this argument, but then he veers sharply away from the effect of ghasab when he realised that the hukm is in diametric conflict with his postulate. However, in order to present a semblance of cohesion in the argument, he produces the examples of misappropriation of Auqaaf property and the property of orphans which the Fuqaha have excluded from the general law governing the ghasab of usufruct (manaafi’) as well as attributes (sifaat) of the misappropriated item. This is an example of unprincipled argumentation.



It behoves the Molwi to examine the rationale for the exclusion of the two aforementioned examples. Should he discern a common ground between his copyright and the two examples, then he will have some superficial justification for having introduced the dimension of ghasab. But there is no commonality of reason (illat) between imaginary unproven copyright and Auqaaf and Orphans’ properties. There is no resemblance, hence it is erroneous and misleading to present the analogy of the two examples. The issue should be argued on the basis of the governing principle of ghasab as it applies to manaafi’ and sifaat. The seminar Molwi’s conclusion that the printer who prints the book without the consent of the author should be held liable for monetary compensation, is thus baseless.

Unprincipled reasoning leads to self-contradiction. The seminar Molwi, in his attempt to seek legality for copyright, has introduced the dimension of ghasab, making the allegation that the printer who prints from a copy of a book which is his mielk, is a ghaasib (usurper) since he embarked on the printing without the consent of the author. Now, if this utterly baseless supposition has to be entertained for an argument, the Molwi Saheb will find himself sinking further into the quagmire of confusion and incongruity which he has created for himself with his patchwork of ‘dalaail’.



Since he has opted for ghasab, it is only logical to apply the rules of ghasab. The votaries of copyright had embarked on an extremely tedious task to ‘prove’ that copyright is maal whose buying and selling are perfectly in order even in terms of the Hanafi Math-hab. Now if it be accepted that the printer has usurped the maal of the author and with this maghsoob (usurped) maal he derived monetary gain/benefit, the rule applicable is that monetary compensation cannot be demanded from the ghaasib in lieu of the gain he had acquired from the maghsoob maal. The same rule will apply if it be accepted that the printer without consent had usurped a valid right and derived benefit there from. If a ghaasib usurps someone’s house and derives monetary gain from it by leasing it out, the owner can only reclaim his house, not the monetary gain the usurper had acquired.



Since the seminar Molwi found himself in this quagmire, he sought aid from the Shaafi Math-hab to extricate him from the mental mess and confusion in which he became stuck.

When the Shariah in terms of the Hanafi Math-hab does not allow monetary compensation to be taken from the usurper for even a real tangible, physical asset such as a vehicle or building from which he had derived substantial ill-gotten profit, how is it conceivable that it will permit monetary compensation for an imaginary abstract right which does not even relate exclusively to the book which belongs to the printer? The right to print the book relates to all the copies sold by the author, which is within the purview of the owner’s tasarruf in his mielk. Another severe obstacle the Hanafi votaries of copyright are confronted with is that the sale of rights independently, i.e. apart from the physical asset to which the rights are related, is baatil. A right cannot be usurped without its material commodity to which it is attached, e.g. the usufruct (benefit) of a house cannot be acquired without talking possession of the actual building; the benefit of a vehicle cannot be gained without ghasab (usurping) of the vehicle itself. Huqooq and Manaafi’ cannot be subjected to ghasab independently since these are abstract entities. In which way is the printer a ghaasib of a haqq-e-maali when he did not usurp any tangible property of the author? The book he has in his possession is his own property. The absurdity of the ghasab argument is thus self-evident.



Another incongruity which will be intractable for the seminar Molwis is that the sale of a product vacillitates between faasid and baatil, depending on the Math-hab, if a corrupt condition is stipulated when selling it. Since the seminar Molwis are prone to have recourse to the Shaafi and other Math-habs, we shall state the Shaafi ruling for their information: In Sharhul Muslim, Imaam Nawawi (rahmatullah alayh) says: “The Ulama said: ‘Conditions in Bay’ (Sale) and its like are of several kinds……….Among them are conditions such as excluding manfa-at (benefit/usufruct from the sale) or that the buyer sells to him (the seller) something else or leases to him a house, etc. This type of condition is baatil. It renders the transaction baatil (null and void). So have the Jamhur ruled. And, Imaam Ahmad said that two (such) conditions will render the transaction baatil. And, Allah knows best.”

In Raudhatut Taalibeen, Vol. 3, page 404, Imaam Nawawi (rahmatullah alayh) says: “….A condition such as the buyer shall not take possession of what he has purchased or he shall not act in it (the item he has bought) with bay’ (i.e. he shall not sell it, etc.), or a condition like stipulating another sale (as well), or giving a loan…..These conditions and their like are faasid. They render the sale faasid.”



Faasid in the Shaafi Math-hab is like Baatil in the Hanafi Math-hab in the context of Buyoo’ (Sales). The sale is rendered null and void by such corrupt stipulations which are repulsive to the Shar’i concept of Bay’. The position of the Hanafi Math-hab regarding corruptive shuroot (conditions) attached to sales is too well-known to the seminar Molwis, hence it will be an exercise in superfluity to repeat the unpalatable truths at this juncture. Suffice to say that in the unanimous ruling of the Jamhur Fuqaha of all Math-habs, a sale encumbered with corrupt stipulations is corrupt and null.



Even laymen will now easily grasp from the aforegoing explanation that the author who has managed to sell 10,000 books of the first edition he had printed, is guilty of 10,000 haraam acts. The stipulation, ‘All Rights Reserved,’ which is related to the property (book) being sold has been excluded from the sale. The right to reprint the book and sell it is a manfa-at which automatically accompanies the book which is being sold. The exclusion of this manfa-at is a Shart-e-Faasid which renders the sale faasid and baatil in the Hanafi Math-hab and the other three Math-habs, respectively.



When a product is sold, all rights and benefits (Huqooq and Manaafi’) associated with the product have to incumbently accompany it. It is haraam to sell someone a book with the stipulation that he may not lend it to his brother to read, or he may not memorize any passages of it, or he may not photocopy any pages from it, or he may not reprint and sell it. All such corrupt conditions are negatory to the Islamic concept of Bay’.

The ‘barkat’ of copyright has bestowed to the author the bounty of 10,000 baatil sales which are in fact 10,000 haraam acts or sins for the author. An added dilemma for the author and copyright Molwis is that according to the Shaafi Math-hab whose aid they repeatedly and monotonously summon when the Hanafi Math-hab blocks their avenues of technical and academic gymnastics, is that the 10,000 books sold in the baatil transactions have to be compulsorily returned to the author irrespective of the author having digested the funds. The clarity of the Shaafi Math-hab on this issue does not augur well for the seminar Molwis with their pejorative taqleed overtones, the Hanafi Math-hab in particular.



Stating the position of the Shaafi Math-hab on the issue of null and void sale transactions, Imaam Nawawi (rahmatullah alayh), in Raudhatut Taalibeen, Vol. 3, page 407, writes:

“When a person purchases an item in a faasid sale either on account of a faasid shart or because of some other factor, and he took possession of the item, he does not become the owner of it by possession. His tasarruf (operation/acting/dealing/wheeling) in it is not valid. It is incumbent on him to return it (to the seller). He (the buyer) is responsible for the expense incurred in returning it just as (the usurper is liable for) the usurped item. It is not permissible for him to retain the item for the purpose of gaining the refund of the price (he had paid)……(Furthermore), he is liable (to the seller) for the market-rental for the period he had held the product irrespective of whether he had derived the benefit (of the item or not), or whether the item was destroyed by him……If it was destroyed by him, he is responsible for its value which is the highest amount from the day of possession to the day of destruction, just like the Maghsoob (usurped item). This is so because the Shariah commands him every moment (that the item is in his possession) to return it to its owner.”



The stipulation that only the author can print the book, creates fasaad(corruption) in the sale from another angle as well. Allaamah Kaasaani states in Badaaius Sanaa’ , Vol. 5, page 169: “(Of the conditions of corruption) is (the stipulation) of a manfa-at (benefit) for either the seller or the buyer…….. (The fasaad is) because the added benefit is made conditional in the sale, and this is riba because it is an excess which does not have anything in its exchange in the sale transaction, or it resembles riba. Verily it corrupts (renders faasid) the sale just as actual riba does.”



The sale of the 10,000 books by the author is faasid since he has stipulated a manfa-at (benefit) for himself. That manfa-at is that only he may print the book, not the buyers and owners of the 10,000 books. The sale of all the 10,000 books is thus invalid. Preventing the owner of the book from tasarruf (operating) in the book, is in conflict with the Shar’i consequences of Bay’ (Sale). Allaamah Kaasaani states in Badaaius Sanaa’, Vol. 5, page 169: “Verily, the (sale) transaction demands mielk (ownership), and mielk in turn demands unrestricted tasarruf (operation) in the mamlook (the purchased item which came into ownership of the buyer),”



Copyright is thus untenable and haraam. It places restrictions on the unfettered right of Tasarruf fil Mielk (i.e. to use one’s property in whatever lawful manner one desires).

The Fuqaha have explicitly mentioned that the condition of debarring the buyer from selling the purchased item renders the sale faasid.

“If a garment is sold on condition that he (the buyer) shall not sell it (the bay’ is faasid).” Badaaius Sanaai’, Vol.5, Page 170



The author sells his printed books with the condition that the buyers may not reprint and sell it. This creates fasaad in the sale. Such a sale is in the category of riba.

The dilemma of perplexing incongruities of the seminar Molwis arises from the deviant Talfeeq echo which is discernible behind the liberal voice of the votaries of copyright. (Talfeeq is the unlawful admixture of Math-habs. The unprincipled selection of masaail from different Math- habs for the preparation of a concocted potion to satisfy the demands of liberalism – nafsaaniyat – is Talfeeq which is berated by all Math- habs).

(5) In his inordinate desire to promote the case of copyright, the seminar Molwi says: “But, if we reflect then it will be realized that the istidlaal (analogical deduction) of Shaami is bereft of weight. Just as haqq-e-muroor (the right of thoroughfare) is related to the surface of the earth, so too is haqq-e-ta-alli (the right of the vacant space above the upper floor) related to the built house (below). Even the surface of the ground is full of air and so is the upper surface of the building (on which there is no other building). Hence, Qiyaas demands that there should be permission for the sale of Ilw (the vacant space on top of a building).”



In his audacity, the Molwi has summarily dismissed as invalid the fourteen century Fatwa of countless thousands of Ahnaaf Fuqaha and Ulama on the question of the sale of vacant space on top of the roof of a building. For 14 centuries the Hanafi fatwa has prohibited the sale of what is termed haqq-e-ta-alli. In this belated age, there have sprouted up some seminar Molwis who have arrogated to themselves the right of dismissing the fourteen century old Rulings of the Math-hab.



This seminar Molwi Saheb is no where near to the six authoritative Tabqaat (Categories) of Ulama which the Fuqaha have categorized. From his audacity and arrogant dismissal of Allaamah Ibn Aabideen’s istidlaal as being bereft of substance, the hues of Admut Taqleed are conspicuously visible. Great Fuqaha and the Aimmah-e-Mujtahideen also erred. The approbrium against the seminar Molwis is not because errors of illustrious Ulama are pointed out. Allaamah Ibn Aabideen inspite of his ilmi grandeur and lofty status in the firmament of the Ulama, is not free of error. Nevertheless, non-entities like the seminar Molwis should restrain their tongues and curb the ujub of their egos. They have absolutely no entitlement to blabber that Shaami’s istidlaal is bereft of substance even if the error may be glaring.



When addressing the errors of senior Ulama, decorum and dignity, honour and reverence are to be observed. After having said this, it is necessary to understand that by his contemptible dismissal of Allaamah Ibn Aabideen’s istidlaal, the seminar Molwi had dismissed the fatwa of the Math-hab upheld by a huge multitude of Fuqaha down the passage of Islam’s 14 century history. Allaamah Ibn Aabideen had endeavoured to vindicate with his istidlaal the 14 century ruling of the Hanafi Fuqaha, right from Imaam Abu Hanifah (rahmatullah alayh) down to the Akaabir Ulama of this century.



If the seminar Molwi lacks the intellectual ability to fathom the rationale presented by Allaamah Ibn Aabideen in vindication of the prohibition of selling haqq-e-ta-alli, or even if there appears to be a rational deficiency in the deduction, the seminar Molwi should at least not have displayed such a disturbing lack of perceptive when he chose to comment on the istidlaal of Allaamah Ibn Aabideen. He should have understood that, after all, Allaamah Ibn Aabideen’s istidlaal was in vindication of the opinion of Imaam Abu Hanifah whose rationale would most assuredly have been more articulate and perhaps more comprehensible to Molwis of shallow comprehension.



If Allaamah Ibn Abideen’s view or the view of any among the Akaabir Ulama is in conflict with the explicit fatwa that has been transmitted down the centuries from the Aimmah-e-Mujtahideen and their Ashaab, there will then be a valid reason to differ. But the difference or refutation will be stated with academic decorum and dignity. In such instances of non-conformity with a view expressed by a senior Aalim, it will be a bigoted person who will emotionally respond by saying that the junior is pitting himself against the senior Aalim. In this case the junior will simply be stating the view of the universally acknowledged senior Ulama, Fuqaha and Aimmah of the past fourteen centuries.

In response to the argument presented by the seminar Molwi with regard to Allaamah Ibn Aabideen, it will suffice to dismiss it with the contempt it deserves. There is no substance in his argument. Irrespective of him having failed to comprehend the istidlaal of Allaamah Ibn Aabideen, and irrespective of any deficiency or conflict in the istidlaal of Allaamah Ibn Aabideen, the incontrovertible truth is that all the Hanafi Fuqahaa have proclaimed a sale of haqq-e-ta-alli baseless and not permissible. This is the incontrovertible and immutable law of the Shariah which tolerates no transformation regardless of urban residential congestion in the cities.



The hardships caused to the population crowded into apartments in cramped cities are not due to the Shariah’s prohibition of selling vacant space on top of a building nor is the sale of vacant space on top of building the solution for the problems of residence mentioned by the seminar Molwi. These hardships are the consequences of rabidly diseased rulers and capitalists having grabbed public property which Allah Ta’ala has made freely available, without payment of money, for all people all over the world. All the lands outside the city precincts which are not owned, the mountains and whatever they bring forth, the oceans with their vast treasures, the forests, the jungles, the deserts, the mines, the oil wells, etc., etc., are all for the free utilization of people. No one and no government have any right to debar people from taking free land for residential and cultivation or farming purposes. The Shariah does not recognize government and municipal ownership of land which Allah Ta’ala has declared Waqf for the use and ownership of whoever is prepared to take the land in his/her possession. The seminar Molwis are displaying stark ignorance of the causes of mankind’s hardships. They are mutely accepting the norms and practices of westernism, believing that the kuffaar concepts of generating money are the solution. Hence, the insane endeavour to offer Shar’i sanction to just every western economic concept.



(6) One of the copyright Molwis contends: “Copyright is such a right with which benefit is derived in this age, and according to the Shariah it is permissible to derive benefit with it. Furthermore, in this age people buy and sell these rights considering them to be maal (tradable commodity) Hence, the definition of maal is applicable to it, and its sale is permissible.”

The seminar Molwis who have blithely resolved to legalize every riba transaction and every new-fangled economic practice of the western capitalists regardless of the conflict with the Shariah, have overlooked one peculiar by-product of their inordinate desire to forge an applicability of the definition of maal (tangible asset) to copyrights, patency rights, permit right, trademark rights and just every kind of imaginary right spawned by the concepts of the Jaahiliyyah of this age.



In having defined copyrights and its kind of imaginary rights as maal, and that too tradable maal, they have effectively assigned it to the category of stock-in-trade which is a subject for Zakaat. In terms of their definition, Zakaat has to be paid on the value of the copyright, etc.



In order to sustain their argument, should they concede the incumbency of paying Zakaat on the value of copyright, a tumultuous turmoil will be created in the law of Zakaat. Does the Shariah ordain Zakaat on intangible ‘assets’ which have been assigned to the maal category? Is Zakaat payable on huqooq and manaafi’? The dissertation of the proponents of Jaahiliyyah ‘rights’ on this topic will be interesting.

Inspite of all the interpretations and misinterpretations on the definition of maal and their elaboration on Urf, the copyright Molwis have not succeeded in proving a single one of their claims. The argument which has been presented above is a hypothesis—a groundless assumption, the starting point of which is a fiction. The conclusions based on this fiction are likewise fallacies, unsubstantiated by Shar’i proofs. The ludicrous argument here comprises the following contentions:



(a) Copyright is permissible. This is a claim without basis and has not been sustained by Shar’i proof, other than the fictitious claim of rights being maal (tradable commodities).

(b) Copyright is a right from which monetary gain is derived in this age. On this basis it is permissible.

(c) According to the Shariah, to derive profit from it is permissible. Again a claim without Shar’i basis.

(d) People in this age consider copyright to be maal, hence it is maal according to the Shariah as well.



This hypothesis posits that the Shar’i definition of maal is applicable to copyright and jaahiliyyah rights in general because the people of this age regard it to be maal. The implied proposal is that the definitions of the Shariah and its concepts should be re-assessed and re-interpreted to bring within their scope copyright and every kind of jaahiliyyah right spawned by the western capitalist economic system.



The re-assessment and re-interpretation of the entire Shariah, without restriction to copyrights and jaahiliyyah rights, have been advocated in the unacceptable concept of urf (custom) which the proponents of copyright have propounded. They have given urf such a wide latitude which allows for abrogation of Shar’i ahkaam which have been in force for the past fourteen centuries.



It is argued that rulings have to change simply because people have become accustomed to a practice. Hence, the claim of copyright being tradable commodity and a valid right from which benefit is derived, is based primarily on the urf of the kuffaar which has originated these so- called rights.



The arguments pertaining to maal, huqooq and manaafi’ are mere diversions introduced to mislead the unwary masses of Muslims. The deciding factor for the copyright liberal Molwis is the urf of the kuffaar. This ‘urf’ has elevated copyright to the status of tradable commodity, hence it is ‘logical’ for it to be maal in the Shariah. This is the line of reasoning adopted by the copyright Molwis.



In fact, in their comprehension of urf they have subverted the entire Shariah and have made every Mansoos Hukm subservient to the urf of the kuffaar and juhala. In their understanding, Shar’i rulings should necessarily change with the vicissitudes and vagaries of the public, be it a kuffaar public. Jettisoning the Shar’i concept of Urf out of the parameters of the Shariah, and bringing it within the parameters of kuffaar urf, is the plot of the seminar, copyright Molwis. The Qur’aan and the Ahaadith are made subordinate to the newly interpreted concept of ‘urf’ of the copyright Molwis The diabolism of this innovated concept of urf is fraught with exceptionally grave implications and consequences for the Deen. The liberal Molwis are in fact executing par excellence the plot of subverting the Shariah, which the modernist mulhids and zindeeqs have initiated. The modernist call for the transformation of the Shariah by the stratagem of reinterpretation, while the liberal Molwis peddle the same cause under the guise of urf to make Islam a pliable instrument of constant change to accommodate the vagaries of the wildly fluctuating dictates of the nafs.



In view of the gravity of the baatil concept of urf of the liberals, a special treatise has to be prepared in refutation of it. If by the Will of Allah Ta’ala, life and circumstances offer companionship, a separate rebuttal of the highly erroneous concept of urf defined by the liberal Molwis will be forthcoming, Insha’Allah. It will suffice here to say that the Islamic concept of Urf (Norm/Custom) is subservient to the Shariah. It cannot abrogate Nass. Its scope is limited to details. It cannot annul the immutable principles of the Shariah. And by Urf is meant lawful custom of the Muslimeen The haraam practices of the kuffaar do not come within the ambit of Shar’i Urf, regardless of the widespread prevalence of the norm.

(8) Their argument of Haqq-e-Qisaas, Khula’, etc. In this argument the votaries of copyright contend that the Shariah allows monetary compensation for rights, e.g. Qisaas, Khula’, etc.

VILE IS THEIR INVESTMENT



“They spend their wealth to prevent (others) from the Path of Allah…” (Surah Anfaal, aayat 31)