al-Jahiz on "substantial non-infringing uses" in ninth-century Baghdad

In ninth-century Baghdad, the Muslim scholar al-Jahiz addressed the legality of alcoholic drinks under Islamic law.  Al-Jahiz harshly and amusingly attacked Medinese jurists.  He declared:

These Medinese jurists who make the smell of drink on the breath a flogging offense, judge that possession of an empty wineskin demands similar punishment because, they claim, it is one of the tools of the wine trade.  (This led one wag to wonder why they do not flog themselves, since each one has about his person the tool of fornication!)  By analogy, they ought to impose the ultimate penalty for possession of a sword, a knife or deadly poison, since these are all instruments of murder.[*]

Al-Jahiz had a keen mind for legal argument.  His argument here predated by about a thousand years the argument in Sony Corp. of America v. Universal City Studios (1984).  In that case, the U.S. Supreme Court ruled that manufacturers of home video recording devices are not liable for copyright infringement because “substantial non-infringing uses” exist for home video recording devices.

Copyright didn’t exist within the vibrant world of authorship in the ancient Islamic world.  But the copyright-infringement defense “substantial non-infringing uses” was recognized in other legal contexts in the ancient Islamic world.

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[*]  Al-Jahiz, Kitab al-sharib wa al-mashrub, trans. Colville (2002) p. 142 (On Drink & Drinkers).  The Medinese jurists declared that drinking toddy was unlawful.  Al-Jahiz argued to the contrary.

Colville, Jim, trans. 2002.  Al-Jāḥiẓ.  Sobriety and mirth: a selection of the shorter writings of al-Jāhiz. London: Kegan Paul.

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