From the ethical-moral point of view, piracy is certainly not justified. It is contrary to ethical-moral principles. In the act of piracy, there is a party who is harmed and wronged, namely the copyright owner of the goods. The Qur’an firmly said that every person must not do wrong or to be wronged (la tadhlimun wa la tudhlamun). The pirates are the wrongdoers, while people are their victim.
Regarding piracy, there is a verse in the Qur’an that instructed us not to eat other people’s property in a vanity. “O you who believe, do not eat one another’s possessions in a false way, except in the way of trade that applies with equal likeness (willingness) between you. And do not kill yourself. Indeed, Allah is the Most Merciful to you. And whoever does that by violating rights and persecution, we will one day put them in hell. ” [QS, al-Nisa` (4): 29].
In commenting on this verse, Fakhruddin al-Razi in his Book of Qur’an Interpretation, Mafatihul Ghaib [See Juz V, p. 72] stated even the notion of “eating” not only refers to the usual and essential meanings, but also to the majazi or figurative meanings. In this definition, then piracy clearly falls into the category of “consuming” other people’s property in a vanity manner. Piracy is clearly a vanity act. In piracy, there will be no from the copyright owner. Prophet Muhammad PBUH said “There is no lawful property of a Muslim except by his willingness”.
Meanwhile, from the perspective of fiqh, piracy cannot be given the slightest tolerance. In that framework there are two cases that need attention. First, piracy can be included in ghasab. Shaykh Nawawi al-Bantani in Nihayah al-Zain defined ghasab as wrongfully depriving others of their rights. In this matter, it is clear that the pirates have violated the rights of others.
As a consequence, the pirates are demanded to bring the pirated goods in front of the owner for their response. If the owner is willing, then he is free. Conversely, if the owner asks for proper and rational compensation, the pirates must fulfill it.
However, to the writer’s opinion, it must still be distinguished between consumptive piracy (istihlaki), used for oneself and those that are productive (intaji), reproduced and sold to others. The two piratings from the point of view of Islamic jurisprudence are clearly different. Piracy carried out only for personal consumption, is not the same law as productive piracy which from the beginning was deliberately designed to rake in economic-material benefits as much as possible.
If consumptive piracy usually occurs in the interests of individuals alone, productive piracy actually takes place on a large scale. Thus, if productive piracy cannot be doubted the degree of illegality, then consumptive piracy, in writer’s opinion, is only at the level of makruh (hated thing in Islam) law. Only someone who has a high awareness is reluctant and moves away from that kind of hated things.
Secondly, it has been explained in fiqh that the requirement for people who want to sell an item (ba`i’) is that the person is in perfect ownership of the item (al-milk al-tamm). As such, pirated property cannot be the property of the pirates, unless there is a legal transfer of ownership. It means that the ownership of pirated goods is not recognized and is seen as false by Islamic Jurisprudence. Therefore, the pirates may not sell any form of pirated goods to other people.
Indeed, if piracy is banned, it will kill the economy of many families. Only, in writer’s opinion, piracy will be able to stifle one’s creativity to work. The world of creation will be disrupted. Can not be imagined if a person who pains to work suddenly must be pirated without the knowledge and permission of the owner.
It would be better if we are more creative in creating something new so as to open new jobs as well. Because it is not impossible, pirated VCD for example, it is produced by people who have big capital, they use sellers in the stalls on the roadside to fulfill their interest. And it is proven that only the sellers who were repeatedly captured and raided, while the investors were not. This is a problem.
Finally, the practice of piracy in this country can only stop if we do not contribute to fertilizing it by buying pirated goods. Then, trade with legitimate goods, not pirated ones. And buy items that are not categorized as piracy.
Translated from the original article : https://islami.co/boleh-nggak-sih-jual-beli-barang-kw-atau-bajakan-dalam-islam-2/, by : Dr. Abdul Moqsith Ghazali, on 3 February 2020.