I find this discussion confusing at best. If conspiracy is not a separate cause of action, why would it have to be repled and how could it succeed if the underlying claim is adequately pled? Moreover, if the underlying tort is copyright, a federal claim, why aren't state conspiracy allegations preempted?
When the conspiracy alleged is merely a conspiracy to engage in conduct that violates rights equivalent to those granted in Section 106, the conspiracy claim is preempted, and is more properly understood as a clumsy (or sneaky) effort to hold third parties responsible for contributory infringement, vicarious liability, or their share of the damages.
Some courts have held that where the underlying tort about which the conspiracy is alleged is itself not preempted, the conspiracy claims are not preempted, a common sense result. Conversely, courts have held that where the underlying tort is preempted, the conspiracy claim is also preempted, an equally commonsense result.