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.

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

Billy Mitchell Threatens To Sue The Guinness World Record Folks For Removing His Records

from the not-how-it-works dept

Last time we wrote about Billy Mitchell -- a man who appears to be famous for playing video games and pissing people off -- he was losing his legal fight against Cartoon Network for having a character that was a parody of Mitchell named Garrett Bobby Ferguson on its "Regular Show." The court was not impressed.

The GBF character resembles Plaintiff because both have long black hair and a beard. GBF also has a similar backstory to Plaintiff’s portrayal in The King of Kong, in that both held records at video games, and both are portrayed as arrogant yet successful, beloved by fans, and willing to go to great lengths to maintain their titles. But while GBF may be a less-than-subtle evocation of Plaintiff, GBF is not a literal representation of him. The television character does not match the Plaintiff in appearance: GBF appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being. Nor does GBF’s story exactly track Plaintiff’s biographical details. GBF holds the universe record at Broken Bonez; Plaintiff held the world record at Donkey Kong. GBF attempts to maintain his universe record through crying and lying about his backstory; Plaintiff maintained his world record by questioning his opponent’s equipment and the authenticity of his submission of a filmed high score. Plaintiff himself acknowledges that GBF is not a literal representation of him when he states that “[t]he actions of this character . . . make me look like some sort of monster, or creature, with no heart or decency. This is simply not me.”

The court also noted that, unlike Mitchell, when Ferguson lost his video game record "the character literally explodes, unlike Plaintiff." So there's that.

Apparently, in early 2018, there was a big controversy when Twin Galaxies, who tracks video game records (including for the Guinness Book of World Records), stripped Mitchell of his various records after claiming that an investigation showed evidence that Mitchell did not follow the rules. The Guinness folks later removed Mitchell's records as well, and later included Mitchell in a section called "The Records That Never Were":

Now, a year and a half later, Mitchell had a law firm send a threat letter to both Guinness and Twin Galaxies, demanding a retraction. There's also the, um, 156-page "evidence pack." Notably, despite the legal threat letter demanding a "retraction" for "their defamatory statements made against him," nowhere in the letter does it lay out which specific statements are actually defamatory. That's kind of a key thing that you're supposed to do if you have a legitimate claim of defamation. What actual statements the letter does mention don't seem to come close to the standard for defamation. Instead, Mitchell's lawyers are nitpicking about Guinness' specific word choice. For example:

Notably, Guinness World Records then published its 2019 Gamer’s Edition Book (see Figure 1). Titled “THE RECORDS THAT NEVER WERE,” Guinness World Records specifically cites the disqualification of Billy Mitchell’s “highest score on PAC-Man and the first perfect score on PAC-Man.” Following that, Guinness stated that Mitchell’s “submitted scores were obtained while using MAME.” In this statement, not only did Guinness World Records assert that Mitchell’s records, specifically his Pac-man records, “NEVER WERE,” but its use of the generalized phrase, “submitted scores,” also asserted that all his achievements were obtained while using MAME. These statements are factually false.

Defamation has to be pretty specific. Merely using a "generalized phrase" that might imply a conclusion that is different than what you want is not defamatory. The letter also demands that every record Mitchell had be restored, and insists that only partially restoring the scores won't be enough to avoid litigation:

This request for retraction is for all of Billy Mitchell’s records; a partial retraction will not suffice. Both Twin Galaxies and Guinness World Records must retract their claims impugning Mitchell's scores publicly, so the damages done to him will finally begin to reverse. There was a press release against Billy Mitchell, and there must be a reciprocal release in his favor.

Each corporation has a 14-day deadline to review the information and issue the retraction, or we will resort to legal recourse, our final option.

But, uh, not giving you a world record is not defamatory. What would they be suing over? I don't see what kind of legal claim there might be. There are also at least some questions about the statute of limitation. The Guinness World Record people are based in NY. The Twin Galaxies boss appears to be in California -- both of which have a 1-year statute of limitations for defamation. Of course, it's possible that he could file elsewhere with a longer statute of limitations. Either way, it's difficult to see what's defamatory here, or what the actual legal claims are. We'll wait and see what is said in response and if any litigation is actually filed.

Filed Under: billy mitchell, cease and desist, cheating, defamation, opinion, records, threats, video games
Companies: guinness world records, twin galaxies