Billy Mitchell takes his Donkey Kong high-score cheating case to court

[Roofus]

There's a defamation lawsuit coming up if anyone wants to watch

In April of 2018, the Twin Galaxies video game scoreboard announced its finding that well-known classic game score-chaser Billy Mitchell did not achieve his Donkey Kong high scores on unmodified arcade hardware, stripping him of all his accumulated records in the process. Since then, Mitchell has oft claimed that he would fight the decision every way he could. And in September 2019, Mitchell and his lawyers said in a statement they would be forced to "resort to legal recourse" if Twin Galaxies didn't rescind its decision and reinstate Mitchell's scores.
But court filings obtained by Ars Technica show that Mitchell had already filed suit against Twin Galaxies in a Los Angeles County court as early as April 2019.

Mitchell's defamation lawsuit—misfiled as "William James Mitchell vs. Twin Galexies, LLC [sic]" and not reported in previous press accounts—has been slowly building to a planned July anti-SLAPP hearing, where Twin Galaxies will make use of a statute that lets defendants quickly strike down lawsuits that threaten "public participation." Twin Galaxies says in court filings that its statements regarding Mitchell's scores were not defamatory and that finding in Mitchell's favor "would have chilling effects on the freedom of speech."

Speaking to Ars Technica, Mitchell said his lawsuit was officially filed last April to fit inside California's statute of limitations for defamation cases, which ran out a year after Twin Galaxies' April 2018 decision to strip Mitchell of all his records. That case was then officially served to Twin Galaxies in February and updated with a more detailed complaint in March, according to court records.
"My law firm and I are fully confident that we will establish a prima face [sic] case for all parts of the lawsuit," Mitchell told Ars Technica in a Twitter Direct Message.

An implicit "cheater" label
In his amended legal complaint, Mitchell argues that Twin Galaxies' published statement regarding his scores was "libelous on its face" because of the implication that "Mitchell did not achieve his record score legitimately." By accusing Mitchell of "impermissibly and secretly shortcutting [the site's] rules," Mitchell argues that Twin Galaxies "at least implied [that he was a cheater], so that any reasonable reader would understand Twin Galaxies has called Mitchell a cheater who deserved punishment by stripping him of all his Twin Galaxies records and banning him for life from submitting further records."

Twin Galaxies' April 2018 decision on Mitchell's Donkey Kong scores was careful not to explicitly call Mitchell a cheater or make any direct statements about his conduct or character. Instead, it focused more narrowly on the "demonstrated impossibility of original unmodified Donkey Kong arcade hardware to produce specific board transition images shown in the videotaped recordings of those adjudicated performances."

In his complaint, Mitchell repeats his previous claims that the result of Twin Galaxies' investigation was "pre-ordained," and that it was undertaken with a "biased observed intent on generating publicity and internet 'clicks' by accusing Mitchell, the most visible of all video gamers, of cheating."

Mitchell takes particular issue with Twin Galaxies' alleged refusal to consider "25 sworn affidavits" from eyewitnesses supporting his claims, in favor of an exclusive focus on "scientific" evidence. Twin Galaxies founder Walter Day is quoted saying that he "find[s] it unexplainable that my testimony as the founder and former owner is disregarded, while others, specifically the ones against Billy, are embraced."

Twin Galaxies' decision was made "with knowledge of its falsity or with reckless disregard for its truth," Mitchell alleges. "The most cursory unbiased investigation would have revealed beyond doubt that the record-breaking Donkey Kong scores were not played on emulation software in private places but were actually played on certified arcade boards in front of hundreds of people."


Mitchell addresses Twin Galaxies' decision to ban his scores publicly for the first time in April 2018.
That's like, just your opinion, man
WHAT ABOUT BROWARD?
Broward County, Florida, court records (as first publicized by the Tipster News YouTube channel) also show a nearly identical defamation suit against Twin Galaxies filed in that jurisdiction. Mitchell has also filed similar suits in Broward against Jeremy Young and Jeff Harrist (the moderators of Donkey Kong Forum, where the original complaints against Mitchell's scores originated) and against YouTuber Ben Smith (a.k.a. Apollo Legend).
Mitchell tells Ars that those lawsuits, filed in early February, "have not been [formally] served" to the defendants in question in that jurisdiction, and that they "may or may not get served" within the 120-day period allowed under Florida law. "We will see," he says. The reasons for the delay in officially presenting those Broward lawsuits will "become more clear later when I release a statement," Mitchell said. "I’ll speak more openly after the [Los Angeles] Anti-SLAPP motion [scheduled for July 6]."

Mitchell's Broward filings cite estimated damages of $10 million against Twin Galaxies and $1 million each against the other named plaintiffs. The LA complaint against Twin Galaxies seeks unspecified damages above $25,000 for "wage loss, general damage, loss of earning capacity" and other compensatory and punitive damages.

Twin Galaxies representatives did not have an official response to a request for comment from Ars. But in a wide-ranging March 30 anti-SLAPP motion to strike Mitchell's lawsuit, Twin Galaxies lawyers argue the site's statements regarding Mitchell weren't legally defamatory. That's in part because the statements were "nothing more than the opinion of Twin Galaxies," as evidenced by the leading clause of the sentence, "We now believe that they are not from an original unmodified DK arcade PCB, and so our investigation of the tape content ends with that conclusion and assertion [emphasis added]."

"It is not as if Twin Galaxies made the statement on its own volition without being prompted," the motion continues. "Instead, it was asked by the community as the final adjudicator of video game scores appearing on its website to consider evidence and render its opinion."

As a well-recognized public figure, Mitchell would also have to prove "actual malice" on Twin Galaxies' part to sustain a defamation claim, the site argues. But Twin Galaxies owner Jason Hall, "who headed the investigation for Twin Galaxies, declares in connection with this motion that he had no doubts about the fact that the score performance at issue were not from an original Donkey Kong Arcade system," the motion reads.

"I personally harbor no animosity or ill will toward Billy Mitchell," Hall writes in a public declaration filed with the court. "I am indifferent one way or another whether his Donkey Kong or other scores appear on the Twin Galaxies Website leaderboards. My only concern is to maintain the integrity of the leaderboards."

Neither the time nor the place
Twin Galaxies' motion highlights that the 3,770-post dispute thread surrounding Mitchell's Donkey Kong scores (which is now included in its entirety in the court record) was viewed nearly 2.4 million times as of March 14. That thread includes entries from 170 unique contributors and 211 public votes on the desired outcome of the case. (Mitchell lost that vote 198-13.)

Mitchell (left) and Jace Hall (center) attend an event at the Arcade Expo 2015 in Banning, California.
Enlarge / Mitchell (left) and Jace Hall (center) attend an event at the Arcade Expo 2015 in Banning, California.
Datagod / TwinGalaxies forums
The investigation surrounding that thread cost Twin Galaxies months of time and thousands of dollars in equipment and salaries to adjudicate, according to court documents. And after all that time and effort, Hall writes that Twin Galaxies "could not replicate the images and artifacts" present in Mitchell's video score submissions using "an original unmodified Donkey Kong Arcade system and PCB... and we tried. That fact showed me the scores were not from [an] Arcade cabinet, and they were performed on some other system."

While Twin Galaxies has never directly said that Mitchell's videos were created via MAME emulation, others have presented significant evidence that this is indeed the case.

"Twin Galaxies believes that this was the most professionally documented and thoroughly investigated video game score of all time," Hall said in his public declaration. "We are currently aware of no other video game score investigation that matches the expense, transparency, and length of investigative time that went into this dispute claim."


Mitchell presents video of his purported high score performances in Donkey Kong and Donkey Kong Jr. in 2010.
During Twin Galaxies' months-long public investigation, Mitchell "had the opportunity to submit evidence in support of his score performances and to engage in the lively public debate about the scores," Twin Galaxies writes in its motion. "He chose not to do so. Instead of settling his grievance then, he waited until the adjudication process had come to end and brought suit in court to prove the veracity of his Donkey Kong score performances."

But court proceedings are "not the forum for [Mitchell] to get revenge," Twin Galaxies argues, claiming that its statements regarding Mitchell were "protected activity" under the First Amendment, and Mitchell's suit "seeks to chill the expression of free speech."

To entertain Mitchell's argument would set a precedent that would let others challenge Twin Galaxies score decisions in court, the site writes. That would lead to an "unnecessary waste of the courts' precious resources" and also "have the practical effect of discouraging Twin Galaxies and others from debating video game scores in a public forum," the site argues.

Both sides will have the opportunity to debate these issues on July 6, when a judge is scheduled to hear arguments on Twin Galaxies' anti-SLAPP motion. Whatever the decision, though, we don't imagine this will be the last we'll hear on this matter from Mitchell.

Promoted Comments
ZebulonPi Wise, Aged Ars Veteran
JUMP TO POST
The amount of forensics that have gone into this is astounding. Never underestimate the power of a pissed-off geek (term used with loving kindness, being one myself) with too much time on their hands...
192 posts | registered 11/11/2008
DRJlaw Ars Scholae Palatinae
JUMP TO POST
daveishereagain wrote:
This is a *defamation* suit, so this is how I see it:

"You're a cheater." *May* be defamation since it refers to his character and not to a specific event. It implies he has cheated in the past and can be suspected he will in the future with no evidence to suggest he has ever cheated.

"We suspect and believe the defendant used nefarious means to manipulate the score on this specific instance and here is our evidence of that manipulation. (He cheated). The public attention this event received compelled us to publicly release our conclusion and our investigation nor the public statement we released on this investigation was in any way done out of personal animosity to the defendant and should not be interpreted as an opinion on his character." Probably not defamation IF the evidence is compelling enough to support their suspicions, the quality and methodology of the investigations and public statements after the fact.


Close, but not quite. You've pointing to a difference between opinions that imply undisclosed defamatory facts and opinions that rest upon disclosed non-defamatory facts. The former may be defamatory because even though the opinion cannot be defamatory, the opinion may cause people to reasonably infer that it is based upon facts or events that are untrue. The latter is not defamatory because the opinion cannot be defamatory and the disclosed facts are at least substantially true. The quality of the reasoning is irrelevant because it's there for all to see and evaluate for themselves.

Billy Mitchell is a cheater is potentially defamatory because it implies that there is a fact that supports the opinion, and that fact may not exist.

Billy Mitchell is a cheater because [item 1] [item 2] [item 3] is only potentially defamatory if one of those items is materially and provably false.

It is exceedingly difficult to mix the two and argue that "Billy Mitchell is a cheater because [item 1] [item 2] [item 3]" is defamatory because it implies "[item 4]." Item 4 wasn't included and wasn't asserted to be true. Adding item 4 changes an argument that was (likely) presented as being complete without it. The complaint is no longer with objectively provable or disprovable statements of fact, but with the opinion itself, or at least the reasoning behind it.

Yet the First Amendment, including defamation law, gives people the right to be wrong. You can make the worst argument in history for why President George W. Bush was a lizard man in league with the Nazis who retreated into the center of the Earth at the end of World War II, so long as you don't base it upon a provably false statement of fact concerning the man himself.

[Dr. Zoidberg]

[ian]

It’s always been a pretty interesting saga.

And zoidberg, that is my favourite episode of Regular show after the last laserdisc player.

[Roofus]

It’s always been a pretty interesting saga.

Yeah and I'm glad that even in the time of coronavirus, there's still stupid bullshit to worry about. And there is no more stupid bullshit in the world than Billy Mitchell.