The Electronic Frontier Foundation and the Stanford Cyberlaw Clinic provided pro bono legal support for the non-profit ISP and the Swarthmore College students, respectively.

United States District Judge Jeremy Fogel ruled that the plaintiffs' publishing of the e-mails was clearly a fair use essentially "because there was no commercial harm and no diminishment of value of the works" in their republication.

Sometime in the spring of 2003 an unknown hacker broke into Diebold computers and obtained a large portion of their email archives, which was posted to various web sites.

[3] In an effort to quash the dissemination of information about security flaws in its voting machines, Diebold had sent dozens of DMCA takedown notices to various ISPs, all of which complied, except for OPG.

[3] Diebold also sent notices to the Online Policy Group, the ISP for an IndyMedia site linking to Pavlosky & Smith's web page, and also to Hurricane Electric, OPG's upstream provider.

Finally, Plaintiffs' and IndyMedia's use was transformative: they used the email archive to support criticism that is in the public interest, not to develop electronic voting technology.

[10] The failure to consider fair use before sending a DMCA notice was also found to compromise its good faith nature in Lenz v. Universal Music Corp.

[11] OPG v. Diebold is also used as a textbook illustration of four-factor analysis (of fair use) alongside Sony Corp. of America v. Universal City Studios, Inc. and MGM v.