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A merciful ending

Twin Galaxies lawyer says settlement avoids “an inordinate amount of costs”

Tashroudian: "I think the finality really is something that we wanted to achieve."

Kyle Orland | 184
A long-haired man plays a late '70s / early '80s video game cabinet.
Billy Mitchell competes at a (presumably authentic) Donkey Kong cabinet. Credit: Flickr / daveynin
Billy Mitchell competes at a (presumably authentic) Donkey Kong cabinet. Credit: Flickr / daveynin

After a nearly five-year legal battle between the scorekeepers at Twin Galaxies and Billy Mitchell over the veracity of Mitchell's contested Donkey Kong high score submissions, the recent settlement of the case before trial might feel a little anticlimactic. But Twin Galaxies attorney David Tashroudian tells Ars Technica that he wasn't surprised both sides opted for the cost savings and quick finality that come with avoiding arguments in front of a jury.

"A ton of cases end up settling prior to trial, just to avoid the expense and for all the parties to get finality and certainty on their own terms," Tashroudian told Ars. "There were going to be an inordinate amount of costs involved, and both parties were facing a lot of uncertainty at trial, and they wanted to get the matter settled on their own terms without putting it to a jury."

For Twin Galaxies, Tashroudian said he wasn't sure if cost "was our primary motivating factor, but I think the finality really is something that we wanted to achieve."

Tashroudian said that Twin Galaxies "had all of our ducks in a row" for an anticipated trial date, and that they were "very confident" in the facts they had laid out in filings during the discovery process. Those filings included evidence calling into question some of the experts that Mitchell had used to make his technical case, as well as photos of Mitchell at a score-setting event showing a Donkey Kong cabinet with a clearly modified joystick, among others.

"It would have definitely been a fun trial and an interesting one considering all the facts," Tashroudian told Ars. In the end, though, he believes a settlement allowed for "getting [the issue] resolved on the parties' terms without putting it to 12 people who might not understand all the nuance... I think when all the facts are disclosed and out there, it really helps the parties analyze their relative positions and come up with a business decision, at the end of the day."

Twin Galaxies-owner Jace Hall has not responded to a request for comment from Ars. Mitchell responded to a request for comment by linking to his social media statement on the settlement.

Splitting the score, baby

Twin Galaxies attorney David Tashroudian. Credit: Tash Law Group
While Tashroudian said he couldn't discuss the specific terms of the settlement, he did say that, "just like with any settlement, parties have to give and take and reach a compromise. I think the parties both did that in this case."

As part of that apparent compromise, Mitchell was able to post a statement saying that "Twin Galaxies has reinstated all of the videogame world records that I achieved in my career." But Twin Galaxies also noted in its statement that the reinstatement is only "part of the official historical database on Twin Galaxies’ website" and not the main, updated version of the scoreboard.

Mitchell's Donkey Kong scores now only appear on a new "Original TG Historical Database" section of the site that Twin Galaxies says serves as "a historical archive of the original score database, copied verbatim from the system obtained during Twin Galaxies' acquisition in 2014." That section predates "modern adjudication protocols," Twin Galaxies writes on the site, and is being provided "as a matter of archival integrity" to reflect "records under previous administrative standards." The "live modern version" of Twin Galaxies' database still does not include Mitchell's submissions as part of its Donkey Kong high scores list.

Tashroudian stopped short of saying that posting the "historic" score database was necessarily a direct result of the lawsuit or settlement. But he did allow that "the community had long desired for the original Twin Galaxies database to be immortalized somewhere. This matter was sort of a vehicle to get that out there..."

In an apparent concession to Mitchell, Twin Galaxies also removed from its website an extensive forum thread outlining the dispute over his record submissions (archived here), "as well as all related statements and articles." But Tashroudian suggested this removal shouldn't necessarily be taken as a disavowal of the results of Twin Galaxies' original investigation, which said that the investigators were "certain... that an unmodified original DK arcade PCB did not output the display seen in the videotaped score performances."

Tashroudian said that Twin Galaxies' statement today "is pretty clear that we're not analyzing the manner in which the tapes were made. I don't know necessarily that the position [on Mitchell's submissions] has changed, it's just that we had reinstated his scores into the original historical database as it existed when it was transferred over."

Mitchell (left) and Twin Galaxies founder Walter Day (right) pose with a fan.
Mitchell (left) and Twin Galaxies founder Walter Day (right) pose with a fan. Credit: Flickr / jasondove

Twin Galaxies' statement also makes multiple references to expert testimony recently presented to the court by Dr. Michael Zyda. That testimony addresses possible anomalies that could have caused an authentic Donkey Kong cabinet to produce the telltale "girder finger" seen in tapes of Mitchell's high-score submission and when playing the game on early versions of the MAME emulator.

Zyda cites potential explanations, including frame rate mismatch between the game and capture device, component aging, VHS tape copying, and faulty wiring that could have caused a "girder finger" to appear on Mitchell's submissions. But while no one has yet been able to get authentic DK hardware to produce the girder finger, Zyda says that "it seems unlikely to me that definitive answers are readily obtainable from Billy’s recorded play sessions watched and single-framed on second and third generation and beyond videotape copies."

Mitchell stands behind footage of his claimed 1.06 million point Donkey Kong game at a 2010 press conference (click for slow-motion replay that seems to show a MAME-style screen transition).
Mitchell stands behind footage of his claimed 1.06 million point Donkey Kong game at a 2010 press conference (click for slow-motion replay that seems to show a MAME-style screen transition). Credit: Donkey Kong Forum

While Twin Galaxies says its reinstatement decision is in part "in fair consideration of the expert opinion provided by Dr. Zyda," it also says the organization "takes no official stance on the creation of submitted content but can recognize and acknowledge Dr. Zyda's expert opinion." Tashroudian echoed that sentiment, referring to Zyda's submission as "his opinion" and adding, "I don't think we're necessarily taking a stance on his opinion one way or the other. But we're recognizing it and acknowledging it."

“Whatever was best for the client...”

Tashroudian said he wasn't surprised to hear that Mitchell was "relieved and satisfied" with the final resolution of the case. "I think everyone is sort of relieved on both sides," he told Ars. "[Mitchell has] been living this for five years, answering discovery, responding to questions, taking away time from his family and his business. There is always some sense of relief and some sense of giving up something in the resolution, but it's always a compromise.

"Resolution is generally best for the client because it provides finality," he added. "Whatever was best for the client is best for me... It's all out there. I think we did a good job all the way through and did some high-quality legal work."

Listing image: Flickr / daveynin

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Kyle Orland Senior Gaming Editor
Kyle Orland has been the Senior Gaming Editor at Ars Technica since 2012, writing primarily about the business, tech, and culture behind video games. He has journalism and computer science degrees from University of Maryland. He once wrote a whole book about Minesweeper.
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