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Ruling on Violating Rights of Intellectual Property

Answered as per Shafi'i Fiqh by Darul Iftaa Jordan
Is violating the rights of intellectual property, namely authorship and internet credit card fraud, considered a kind of theft that entails discretionary punishment or punishment determined by Shariah for crimes(Hudud) or considered a kind of banditry? If it is a discretionary, what prevented the execution of punishment determined by Sharia for crimes?

All perfect praise be to Allah, The Lord of The Worlds, and may his peace and blessings be upon our Prophet Mohammad and upon all his family and companions.

Rights of intellectual property, authorship and credit cards are contemporary issues and, in commercial practice, they are of considerable value. Therefore, Fiqh academies recognized them as rights and properties exclusive to their owners. Based on this, theft, manipulation and all forms of violation aren`t permissible. Allah, The Almighty, said: " O ye who believe! Eat not up your property among yourselves in vanities"{An-Nisa`/29}. Resolution No.(43) of the International Islamic Fiqh Academy states: "Trade name, registered address, trade mark, authorship and patent are exclusive rights to their owners, and, in commercial practice, they are of considerable financial value, and they are recognized and protected in Sharia."

If authorship rights are protected then violating them is considered a kind of theft that entails the execution of discretionary punishment, but not punishment determined by Shariah for crimes because the conditions of the latter aren`t met. However, if these rights aren`t protected and authors of these published books and the like permitted their use for free, then there is no harm in downloading and using them in study groups or for discussions among students or others because the owner of the book rights had made it accessible or has given up his right.

As regards internet credit card fraud, jurists have unanimously agreed that this crime doesn`t entail executing the punishment for theft(cutting the hand of the offender), unless the stolen money was kept in an inaccessible place. "Jurists have agreed that among the conditions of the stolen item is that it must be in an inaccessible place, as stated by Ibn Al-Monzer and other scholars. Therefore, no cutting of the hand must take place if the stolen item wasn`t in an inaccessible place."{Moghni Al-Mohtajj,(5/474), by Al-Khateeb Ashirbini}.

Moreover, if the funds are protected in their inaccessible internet site used for saving similar items that none but the original owner can dispose of ,such as bank accounts, then stealing them entails executing the punishment for theft which is cutting the hand of the offender provided that all the conditions of this punishment are met and in accordance with the discretion of the Muslim judge. However, if these funds were neither protected nor kept in an inaccessible place, or their owner was negligent, then discretionary punishment must be executed and in accordance with the stipulations of the law. Al-Imam Ashirbini stated: "If the owner closed his door, but hid the key in a place close to the door and the thief found that key and got in, then the hand of the latter isn`t to be cut, as ruled by the scholar Al-Bulkhini, because placing that key there was an act of negligence."{Moghni Al-Mohtajj,(5/478)}.

As far as the punishment for banditry is concerned, its conditions don`t apply to internet fraud because banditry depends on the might of the bandit who does that crime in public, unlike stealing. And Allah knows best.

This answer was collected from the official government Iftaa Department of Jordan.

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