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

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

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."