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Billy Mitchell's Defamation Case Against Twin Galaxies Over 'Donkey Kong' High Score Can Go Forward

from the here-comes-discovery dept

We've discussed Billy Mitchell a couple of times here at Techdirt, both times due to his overtly litigious nature, rather than his apparent video game playing prowess. See, Mitchell is rather well known primarily as the record holder for video game scores, including briefly holding the Guinness World Record for a Donkey Kong high score, until he was stripped of it. See, Twin Galaxies, an official tracker of such video game records, determined based on video evidence that Mitchell wasn't playing an official version of the arcade cabinet of the game. Upon being stripped of his records, Mitchell sued for... defamation. Oh, and he also sued the Cartoon Network over a very clear parody depiction in part inspired by his gregarious personage.

But back to the defamation suit, which Mitchell filed against Twin Galaxies. He recently got the court allow him to proceed to trial after Twin Galaxies brought an anti-SLAPP suit to the court.

In his ruling on Twin Galaxies' anti-SLAPP motion, Judge Gregory Alarcon ruled that Mitchell is a public figure in the gaming community and that Twin Galaxies was discussing a controversy of public interest to that community. That means Mitchell will have to prove at trial both the falsity of Twin Galaxies' claims and that the organization acted with "actual malice" in making them.

While the ruling is careful not to "weigh evidence or resolve conflicting factual claims" on that score until the full trial, Judge Alarcon does tip his hand a little as to what evidence he finds potentially compelling. In particular, the judge seems interested in why Twin Galaxies refused to interview a number of witnesses Mitchell put forward to testify to the authenticity of his score performances.

Apparently at issue is that Mitchell wanted a witness, specifically the referee of his Donkey Kong high score, to be interviewed and considered by Twin Galaxies prior to their having negated Mitchell's high scores. Here's the problem: that referee has also been banned by Twin Galaxies for cheating in trying to get high scores in an unrelated video game. Still, the court notes that, at this stage, the deference is given to the plaintiff and, in that specific light, Twin Galaxies' refusal to consider witness testimony is enough to let this proceed.

Mitchell, true to his self-promoting history, is taking a victory lap on all this, as though he'd won a trial. He hasn't. Instead, he's opened himself up to discovery.

Even as Mitchell has met his burden of "minimal merit" in the anti-SLAPP motion, Judge Alarcon also writes that Twin Galaxies has "satisfied the low burden to show a reasonable possibility of prevailing in this action" in a separate motion.

The scoreboard has presented evidence to "[support] that its statement does not show actual malice," the judge writes, and which "supports that Twin Galaxies did not harbor doubt as to the truth of its statement, as its statement was made after Twin Galaxies' lengthy investigation on the dispute. The testimony of [Twin Galaxies owner and CEO Jace] Hall's belief that eyewitness evidence was unnecessary may reasonably go in [Twin Galaxies'] favor on this point, undermining [Mitchell]'s claim that [Twin Galaxies] acted with reckless disregard of the truth."

It's important to be able to keep two things in your head at once: that Mitchell may well have validly broken the Donkey Kong record as he claims and that Twin Galaxies did not do anything close to reaching the actual malice standard required for a defamation case of a public figure. And, despite Mitchell's public statements to the contrary, the lawyer for Twin Galaxies doesn't seem particularly worried.

Mitchell was helped in the anti-SLAPP motion, Tashroudian says, by the fact that "at this early stage the court is bound to accept whatever Mitchell puts forward as true." That includes a lot of what Tashroudian calls hearsay evidence involving phone calls where Hall allegedly told Mitchell and Twin Galaxies founder Walter Day that he "didn't care about certain evidence."

"The court is not allowed to determine the credibility of these statements [at this point] and must accept them as true," Tashroudian tells Ars. "[At trial] we'll be able to show that Mitchell is not credible because we have numerous situations of documented falsehoods in his papers. I'm confident that... after all of the evidence has been adduced, and when Billy is deposed and not allowed to hide behind declarations, the truth will come out."

I have no tea leaves to read, but those are the words of an attorney quite confident in the video evidence his client has to back up its statements. All I'll say is that Mitchell had damned well better be right that he broke those Donkey Kong records on a legit and standard Donkey Kong machine if he's really goin to proceed to discovery.

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Filed Under: actual malice, anti-slapp, billy mitchell, defamation, discovery, public figure, slapp
Companies: twin galaxies


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  • icon
    Toom1275 (profile), 30 Oct 2020 @ 8:59pm

    Here's the problem: that referee has also been banned by Twin Galaxies for cheating in trying to get high scores in an unrelated video game.

    Note: that's Todd Rodgers, who was found to have to have lied avout his sxore in Atari's Dragster game, because the score he claimed to have gotten was deemed to be physically impossible to achieve even with tool-assisted cheating. (and he had yet provided zero evidence other than his word)

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 30 Oct 2020 @ 9:28pm

      Per Wikipedia:

      In 1982, video gamer Todd Rogers claimed to have set the world record for Dragster with a time of 5.51 seconds. Until January 29, 2018 this claim was accepted by video game record-keeping organization Twin Galaxies, and Guinness World Records, which later also recognized the achievement as the longest-standing video-game world record. Rogers had previously said that the way he achieved the record was by putting the car into second gear as the countdown timer reaches zero. Eric "OmniGamer" Koziel, a speedrunner and creator of tool-assisted speedruns, analyzed the code of the game. He did not find anything that would enable shifting up from first gear during the countdown and he determined the best possible time is 5.57. … The [current] world record is 5.57 seconds which has been achieved by multiple players.

      reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 2 Nov 2020 @ 9:12am

      Re:

      And I'll add (as in our previous discussion over in the Ars comments) that the judge isn't allowed to say "Todd Rodgers is an unreliable witness" at this point in litigation.

      reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 30 Oct 2020 @ 9:48pm

    Coverage of this D0nkey K0ng case

    is brought to you by Streisand, Prenda, Ayyadurai and Associates.

    And where the hell is the d0nkey?

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 31 Oct 2020 @ 12:08am

    Conflict of interest mixed with bias much?

    'For my next witness I would like to call a known liar and cheat, who also got his game-related record by lying about it.'

    Can't imagine why Twin Galaxies might not have been interested in hearing from any 'witnesses' if that was the quality of people to be presented...

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 31 Oct 2020 @ 12:28am

    First rule of the con-artist

    When caught in a lie, double down.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2020 @ 4:31am

    Good stuff.

    Now he gets to embarrass himself in front of a court, not just in front of anyone anyone with the basic level of technical knowledge to have pulled off more convincing fakery.

    Someone is doing great business selling shovels.

    reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 31 Oct 2020 @ 9:56am

    This is an expensive loss for Twin Galaxies.

    A SLAPP win would have immediately shut down the case and resulted in the likelihood of some of their legal fees being paid.

    Winning after a trial is an empty victory. They will likely have huge expenses, with little chance of fee recovery.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 31 Oct 2020 @ 10:16am

      I wouldn’t be so sure. In this, the era of crowdfunding, I think more than a few people would be willing to donate some spare cash towards Twin Galaxies…if, in some cases, only for the sake of metaphorically pissing on the shoes of Billy Mitchell.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 1 Nov 2020 @ 1:41am

        Re:

        Yeah, Mitchell is not particularly well liked by a lot of people, and they would be happy to contribute to those who made further humiliation possible.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2020 @ 11:46am

    Bringing a malicious case against Twin Galaxies is going to result in a presumption of legal fees.

    Billy "cheater cheater, flaming barrel eater" Mitchell is going to be on the hook for hundreds of thousands of dollars, once it's proved he lied, he KNEW he lied but he brought a deliberately frivolous case forward simply to "get revenge" and cost twin galaxies money.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2020 @ 2:13pm

      Re:

      The crucial thing is going to be if TG have the cash to keep fighting it. Hopefully yeah, some kind of crowdfunder for their costs will help ensure Mitchell doesn't just leverage having the money to stick it out.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2020 @ 3:56pm

    What a poor, sad, pathetic wanker he is if his ego has to be propped up by a "claim to fame" based upon a score on a now ancient video game.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 1 Nov 2020 @ 1:46am

      Re:

      He doesn't really have anything else. His main claim to fame was achieving high scores in the 80s, then being featured prominently in the King Of Kong documentary, which he has leveraged into paid public appearances, sponsorships and other things. His entire public reputation is based on his Donkey Kong scores.Certainly nobody would know or care about him outside his local area if he only had his day job as a restaurant owner.

      The man is an egotistical asshole, but there's more at stake than hurt feelings in this case.

      reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 1 Nov 2020 @ 9:49am

    One amusing way that Mitchell is trying to tuen defamation law on ots head:

    One part of defamation, is that if the accused claims to have merely been repeating what they heard from another source, that it could still be ruled defamatory if the accused knew their source was not reliable.

    I.e. "You defamed me because you accepted the claims of a proven liar!"

    Vs. Mitchell bringing in Todd so he can argue:
    "You defamed me because you refuse to accept the claims of a proven liar!"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Nov 2020 @ 3:55am

    All I'll say is that Mitchell had damned well better be right that he broke those
    Donkey Kong records on a legit and standard Donkey Kong machine if he's really
    goin to proceed to discovery.

    The video proofs it was done on Mame so why is a testimony (of a liar) even necessary?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Nov 2020 @ 4:39am

    If nothing else...

    TG should try and get Jim Sterling to write and perform their statement after the case is finally resolved in their favour. His video after Digital Homicide tried to sue him for $10 million over saying their shit games were shit was just perfection.

    reply to this | link to this | view in chronology ]


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