OpenRisk, LLC v. MicroStrategy Services Corporation

Under § 301 of the Copyright Act of 1976, “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title.” This Court held in Dowling v. United States, 473 U.S. 207 (1985) and the Fifth Circuit’s held in United States v. Smith, 686 F. 2d 234 (1982), that copyright infringement does not equate to theft under the National Stolen Property Act § 2314. The question presented here is: Whether the Fourth Circuit erroneously held, in conflict with decisions of this Court in Dowling and the Fifth Circuit in Smith, that § 301 of the Copyright Act of 1976 preempts claims of theft, more specifically Virginia state law claims of embezzlement and larceny.