Lawful Mischief: Let the Buyer Beware

In a recent article I wrote about how unforeseen liabilities incurred by many manufacturers are as a rule passed down through their marketing and supply chains to a consumer public for it to bear.

Wayback now I wrote and noted how in the course of the 18th century here in Britain at a time when The Agrarian Revolution occurred, which preceded The Industrial Revolution, and encouraged the well-off to make an outrageous land-grab by taking from the ordinary person ancient rights of access to land for grazing and firewood etc. This land grab was carried out by well-off people ‘enclosing’ land. That is, setting up fences which kept out others, and even those who formerly had had rights of access etc.

The land grab was made because new ways of intensive farming were beginning to make cultivation of the land become a booming business venture; the land grabs were made for money; for pursuit of gain; and at the expense of that class of person who had little enough anyway on which to subsist.

Thus by way of what amounted to a manipulation of justice, laws were passed, Enclosure Acts, and these laws legitimised and made ‘above board’ at least in a temporal world, these shameful landgrabs of greed.

Going back to ancient times – I have told this story before too – there was Alexander the Great, ruler of all the known world by way of sweeping war and conquest – his empire. At one time before Alexander stood for judgement a pirate who was allowed to speak a few words in his own defence. The pirate is said to have said to Alexander something of this sort: ‘I have robbed and raided just a few odd ships here and there; but you have raided and pillaged whole nations.’

The pirate’s argument is wholly sound. I don’t know what happened to him?

The point being made by me by giving you all these examples of what I have titled ‘Lawful Mischief’; is that here with us today are the petty Alexanders and the legitimised theives and the manipulating defrayers of liability; and we all allow them to trade still and we are all too often hoodwinked by one or two of them and their sly ways.

The remainder of this article is going to course through about a half dozen examples of present day hoodwinking; most being within the law; some worked by traders; some by consumers; and some beyond the law; criminal. The aim of doing this coursing through examples is to demonstrate how the law in many instances is no adequate protection against a person being cheated, hoodwinked. I make this review of scams, legal and illegal, to demonstrate to you the fact that there are as flagrant and wicked ill-doers sheltering under the legal side of trading, as there are on the criminal side; and that taken as a whole and ethically speaking, those persons on the right side of the law and those persons on the wrong side of it, in fact have very little to differentiate them one from another.

Which of them is worse is hard to say. The crimimals have honesty on their side in that they never intended to give their activites a makeover gloss of lawfulness. Yet the criminals to are those who are the more brasen in that they show no regard for staying within the law.

Much of the Lawful Mischief I am going to example is carried on by bigger companies; most especially by those companies who have a disproportionately large market share of trading compared to their nearest competitiors; and then there is another typical large company format which is ace at brewing Lawful Mischief; which is the large company which holds presitgious Brands and Marks, and often also they hold, so as to fortify their trading supremacies, state sanctioned monopolies in the shape of patents copyrights and design rights; all of which hedge them around with an exclusivity for their prestigious Branded products.

In such larger companies as those whose habit is to practice these Lawful Mischiefs, there is likely to be, I doubt there are any without, a dedicated marketing department of ‘creatives’ – misnomer – a large and hothouse department wherein astute men and women dream up attractive but in the main tacky ideas. These are stewed up and offered for consideration, testing and trial in the company; with an eye solely and wholly on impressing the consumer with a false asumption that here is a fantastic deal or offer, when the deal or offer for a consumer is inevitably and in fact a cognitive deceit and illusion.

Let’s take the most topical of these Legal Mischiefs; one come to light today; that airlines are in a habit of deliberately overbooking passenger numbers on flights. The aim is to ensure that every flight takes off with a full payload of passengers; thus the airline profits in this resepct are always maximised. Whenever turn up to fly too many passengers, airlines are in the habit of offering sums of money to volunteers amongst passengers who are happy to fly later on another flight; to just sufficient numbers of passengers willing to opt for a voluntary delay. They are paid to demur from the present flight, so as to make the flight 100% full and no less.

Now today it was reported on BBC News that a man had been forcibly removed from a flight because he had not been willing to accept payment and take a later flight. The man got a bloody nose into the bargain from an airline ‘heavy’ and other passengers were vexed – I’m not sure whether about the delay or about the treatment given the man?

Now airlines so far as I know are springing it on passengers expecting a seat once the passengers are boarding, that some of them will not get that flight. So one might believe one has a valid ticket to fly but in fact one has not. And one does not realise this is so until boarding.

The man forcibly removed did not want to miss his booked flight; he was unwilling to be bought off; he was unwilling to leave the plane; and he was manhandled off it.

Now this scenario of the extra passenger who does not want to leave the plane one would think would have been an inevitable thing for the airline concerned to have envisaged as a likely scenario bound to happen sooner or later? I do believe that the airline did envisage it but true to form the airline just let it go and opted to deal with such as case when the occasion(s) arise(s). I say true to form because of the presuppositions of the airlines who do this kind of practice are tellingly revealling to consider.

The part of this ‘marketing’ of Lawful Mischief, in this case, by the airlines, which stands out like a sore thumb, is the presupposition that the airline is/would be – able to buy off sufficient passengers always every time so as to make everything, everytime, go hunky dory for them. The thought that money does not speak sufficiently loudly to some people who are being asked to leave a flight never entered their calculations. Their own great avarice to maximise profits by ensuring via this marketing wheese that evey flight of theirs is 100% full on takeoff, this has led them to believe that money offers to voluntarily delayed passengers would always carry the day and bear the sway.

And so here today we had a man not to be bought off, and in a hurry to get somewhere; a misfit; an odd sort of person who did not fit the smart airline buisiness model; labelled a troublemaker by the airline’s CEO; given a bloody nose by an ‘official’; and frog-marched off by heavies against his will and angrily shouting and resisting.

This then is one of many such legitimate faces of trading in our laissez faire competitive political economy. Laissez faire means ‘Let’s do it’; and the term emphasises freedom and freedom of choice, thus free trade and open competition et al. The onus of laissez faire is ever upon those who trade and do business, for them to set their own terms; and hey presto, the hallowed marketplace is the arena which by a kind of Darwinian Natural Selection, approves or disapproves the terms any trader sets. The buying consumer in theory has a right to buy or to walk and go elsewhere. Thus in theory the consumer carries out the final verdict on the trader, on his goods/services and on his terms.

The consumer then in theory is the natural and actual curb on the rapaciousness of any trader.

One might classify the following aspects of doing business as a company today in the consumer society, as being wily ways invented by such companies deliberately so as to circumvent in their favour this extremely theoretical Let’s do it laissez faire in our would-be open society’ of ‘autonomous ‘checks and balances’; all supposedly built into the system by a form of ‘naturalmeans. The smart Alec henchmen and women of such companies in their marketing departments act to back the companies to the very hilt in a quest for their own fulfillments of greed, power, and avarice. The circumventing aspects of business in the main are:

  • Marketing and marketing departments
  • Advertising
  • Patents, Designs and Copyrights
  • Trademarks and Branding
  • Licensing of rights
  • Dividing up trading territories
  • Following (globally)the cheapest markets to make goods/offer services in/from
  • Setting up Charitable Foundations
  • Creative Accounting
  • Tax Avoidance

There are more – these are more than enough for now.

Everything on this list is done religiously avidly by, especially, larger companies, and by those companies aspiring to reach the heights; it is done primarily by them so as to bias the Let’s do it laissez faire open-endedness of theory deeply, profoundly and dreadfully in their favours in practice.

I am able, if I had enough time and patience, to demonstrate to you in words and examples how each of these aspects listed works in the great favour of the companies who practice it; and on the other hand to the deep detriment of the ‘buck stops here’ consumer. If you had enough patience also?

Before I leave the airline malpractice example which I began with I want to add something final which my wife brought up when we heard about what was going on. She said: ‘why doesn’t the man sue the airline for breach of contract?’. I thought about it and said: ‘Because of the long and dreary costly bother of setting up a small claims case; and because of a residual uncertainty about not wining the case.’

Law here in UK and I guess it’s worse in USA is too expensive for the common person. Justice costs too much. It is too slow and too uncertain. A large company is able to spin-out cases indefinitely and to take them to the limits of The Supreme Court if necessary; when much is at stake for them. They are able easily to daunt or weary or cow or deter ordinary Joe and Jane Soaps from taking them on. It is David versus Goliath but with Goliath bashing the stuffing out of David every time.

And this fact of the sheer dominance of companies leads inevitably to their using their dominance to oppress lesser entities and persons. Consider your own experience; consider how many times you have been more or less forced to pay demands and extras and small but significant add-ons and service charges and so on by the companies you deal with in the course of your upkeep of your household? In my own experience I can say hand on heart that never before has so much money left my household and gone unexpectedly, unduly, and irrecoverably, to utilities, to taxes, to IT and Comms services, to all kinds of traders and leviers, than it has done over the past two or three years.

Particularly I believe the situation has worsened so much because so many companies and their employees and so much marketing and other wheezes have been at work and have put in place so many ‘milch cow’ wiseacre Lawful Mischiefs so that the balance between the consumer and trading companies is now well out of kilter; extremely so.

The simple fact that there is no adequate or straightforward means of redress at the disposal of a consumer right now has allowed companies of all kinds to exploit to the very brim of the trough wheezes which bring in a kind of ‘rapine’ income to them.

This then is that Triumph of Capitalism, so much lauded and made so much of; by the same persons and their businesses who are wringing dry the very pockets of the common person. It’s just another form of totalitarianism; one sanctioned by governments. And were it not sanctioned by governments, nevertheless governments today are ever more abject and at the behest of large companies and so are kowtowing to and mollifying and soliciting them and their wealth and power; begging them almost to come and trade build or sell in this particular neck of the woods.

Yet governments as they go are also are compiled of persons the same who sit on boards and who are in the pay of large companies; even of persons running conglomerates as Captains of Industry themselves. The parallel accords with that of the academics in The West; who are now businessmen; and as such are in the pockets of and in the pay of industry and its Captains.

These Captains are the new Tamburlains and Genghis Khans; Sennacheribs and Piccolominos of the world. Their ambitions universally are forever for a greater dominance; of their competitors and of their consumer publics; whom they screw as tightly as their smart Alec wise-guy idea departments can muster.

Let’s take a few smaller but yet very significant examples of ‘screw you Joe Public!’

It has been customary in former but recent years in the UK for smaller manufacturers of car spare parts to be allowed a waiver in regard to those patents which protect, fortify and surround with a hedge the big car manufacturers’ automobiles, so that these smaller firms are able to produce spare parts for cars whose designs etc are yet still under patent. The same logic has always applied likewise to IT manufacturers of hardware and of the sundries which their hardware requires. I mean items like printers and phones as hardware, and sundries like batteries and inks.

Yet use Apple’s i Phone i Tunes software on your Microsoft desktop to upload one’s phone data and save it temporarily; and then try to restore/repair your i phone’s software using the i Tunes app, and lo, when your battery in your phone is a replacement, and not an Apple battery, one is likely to run into problems; and your restore/repair is likely to fail. You are left high and dry. No forewarning on the i tunes app software notices or information; nothing obviously present without reading through reams of Terms and Conditions before using the i Tunes software.

Thus the ‘spare parts’ waiver on the patent useful to small manufacturers of replacement batteries for Apple phones is circumvented, made null land void, in respect of resetting and restoring your phone. One cannot but believe Apple has set this state of affairs up deliberately; a sort of ‘dog in the manger’ trick so as to do as much as they are able to ‘tie in’ their consumers to Apple branded goods only.

I wrote in another piece recently about ‘Tommy Shops’ having been historically present in the South Wales Valleys mining communities in the nineteenth and twentieth centuries. Miners were paid in ‘tokens’ issued, minted, by the employer, the coal pit owner, who had also set up shops selling all the things needful for life, and which was the only place that redeemed the employer’s tokens. These were Tommy Shops. In this way the employer was able to exploit the miners even when the miners were not digging out coal for him. Miners and their families were wholly tied-in to using employers’ Tommy Shops to buy all their worldly goods in.

Is not this Apple battery Legal Mischief not another incarnation of the Tommy Shop and its tokens? I think so.

Now printers. Printers historically I have seen them being ‘given away’ gratis at stores – a large and complex piece of state of the art electronics being given out like sweets are offered in a hotel reception. The trick, the wheeze, the Legal Mischief being that printer inks are horrendously and outrageously expensive, and last disappointingly very briefly before a refill is needed. Thus a printer is joyfully taken away gratis by a very happy shopper who then spend five or six years paying through the nose for it in ridiculously priced ink refills.

Now the small firms spare parts waiver of patents on printers kicks in; and small firms begin making ‘compatible cartridges’ for the ‘free’ printers. The printer makers hit back. Soon a printer arrives on the market which will work only with ‘genuine’ Branded to the printer manufacturer’s ink refills. It is the Apple, and the Tommy Shop story over again; and over again.

We all know these small scale Legal Mischiefs and for the most part we accept them as part of the detail of modern life. It says something sordid about modern life that we have to do so. We have to do so because usually there’s no alternative other than a new printer or a new phone. Captive markets we are. Tommy Shop traffic

And the old Scots saying that: ‘Many a mickle makes a muckle’ applies. It is a few $ or £ extra for us every time we buy a battery or an ink; but for Apple and for the printer Companies this few extra $ or £ amounts to billions across the years. Worse, they feel they are entitled to this windfall which they have worked their way by their machinations with patent law and with spare parts; all’s fair in love and war – and in business.

Thus we come to charity. There is no charity in business, that is why Apple and Printer Companies set things up and set us up the way they do. How many other similar ‘tie-ins’ to Tommy Shops do you know of; have affected you? Remember it’s all part of that laissez faire Let’s do it; that freedom to choose and that allowing the marketplace to settle issues of supply, demand, pricing, stocks, profit, and value. I don’t think so.

Just like loaded dice, we are on the other end of a bum deal. Just like the big guy with the loot on the poker table is able to blow away the little guys by raising them so high their hair stands on end and they cannot follow because their money and credit does not stretch that far. This is what it looks like from our end of laissez faire.

Some more – and more substantial – examples.

Charity. Burger King and MacDonald’s. Burger King has pulled off a major coup in marketing. It has won the prize awarded by companies like itself who value these marketing wheezes. Burger King approached MacDonald’s with a proposition that they join forces so as to produce a sort of ‘charity burger’. The proceeds, part of them, will go to needy causes.

What a wheeze! A fait acompli by Burger King indeed! MacDonald’s might hardly have refused such an approach from Burger King. How would it look in the ensuing publicity – the tabloids no doubt being encouraged by a very accessible and amenable Burger King to report big on such a remiss refusal by MacDonald’s.

So MacDonald’s more or less dragooned into the wheeze by a sort of (im)moral blackmail. And to boot Burger King comes out smelling of roses because it was Burger King who had the idea and who initiated it and who approached MacDonald’s. Thus Burger King is the top dog in the partnership no doubt.

And for charity too – the icing on the cake – what a wheeze! The charity bit to Burger King is worth every penny donated; as a smart polish and shine for company image and reputation – especially seeing that MacDonald’s is paying a substantial amount of it! MacDonald’s is merely the poor relation here. Caught out by a smart Alec in Burger King’s marketing factory. It seems to me only incidental that there is a charity element in play in the arrangement. It is the kingpin of the marketing ploy as ploy; but only incidental that the needy get something out of it. That’s why it got the marketing prize. I’m not a cynic – I’m a truth teller. I am single-minded about straight down the line dealing – and am unhappy with sly tricks.

There are more. I may let some remain for another follow up on this topic – there’s so much to cover. One last example – of the consumers taking the hint from their masters, the companies; and taking a leaf out of their books.

There is a scam going on here in UK for some years now concerning driving and cars. It became the ‘fashion’ that whenever one was in a bump in a car one would claim insurance payout for the ubiquitous and inevitable ‘whiplash’ one had suffered. ‘Whiplash’ is a strain of the neck cause by a vehicle juddering to a very sudden halt in a bump. Likewise, another consumer wheeze – claiming on gas appliance insurance – by taking it out in early spring and claiming in autumn but the heating being broken from before the time you took insurance out.

Of course, as fashions, these things merely put everyone’s insurance premiums up severely and their cost becomes distributed, diffused by the insurance companies, to the consumer’s pocket – yet again.

Another vehicle scam was that persons would buy up an old worn out car and insure it as if it were new. Then crash it – a write-off. That too ended up as a bill for the likes of you and me.

Lastly before I stop I want to give an example or two of collusions between companies and consumers to fix up a wheeze by which both make some cash – though there are caveats.

The first example is the guy with the billboard who accosts you in the high street asking you whether you’ve had an accident in the past 3 years. He, his company will fight your case ( which you never knew you had till now) and get you compensation (which you never knew you could get till now); and the thought of this is supposed to light up a cash till inside your head and show you daydreams of a cruise or of a couple of days abroad. Greed is the spur – but the guy is offering you a sprat to catch a mackerel for himself.

These claims are notorious for not paying out what they promise. Very often most of the money compensated, when there is actually money compensated, surprise, surprise, is swallowed up in legal bills to the firm who was so concerned that you should have gotten justice for your accident that was not your fault. The final fillet on the bait is – a no win no fee pledge – and the mouthwatering avarice driven passer-by is then hooked.

Likewise on the phone here in UK today about half one’s calls are scams. One which is a Lawful Mischief is concerning PPI – Private Property Insurance or something like that. It was something ‘mis-sold’ to house buyers for a long period before the 2008 crash. Even now, after four or five years of scattergun cold calls about that money due to you from your mis-sold PPI the calls keep coming in; and big hoardings at junctions here still are carrying new posters such as ‘ There’s still billions of unclaimed PPI!’.

The whole economy here seems ever more and more to be becoming a big game of gambling and windfalls; gambling one loses and windfalls which are so light they barely hit the ground. Money in truth has become our raison d’etre – get it any way we can – above or below the board – licit, illicit, scam or wheeze – they’re all valid.

Everyone is game for some Lawful Mischief; instead of freedom its a chaos of free for all, two falls two submissions or a knockout. Freedom is precious – to be guarded by way of self restraint and due consideration. What we have is a riot, a mess, a confusion of voices shouting to one another and only each individual listening to his/her own voice and to no-one else’s.

Not freedom – wanton license.

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