If I-tunes is selling a song that is infringing on my copyright, do I have to provide a take-down notice requesting them to remove it, or is I-Tunes not subject to the safe harbor provisions because it is a direct distributor, receiving a financial benefit? If it is subject to safe harbor, what about the profits it has made off of my infringed copyright?
Apple has hundreds of lawyers. How many ip lawyers do you have?
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First, regardless of whether Apple's iTunes is technically subject to the DMCA's safe harbor provisions, submitting a complaint via their own iTunes Content Dispute process is probably your best bet. http://www.apple.com/legal/internet-services/itunes/itunesstorenotices/ Typically the DMCA safe harbor provisions (where the website owner is insulated from liability as long as they comply with properly issued take-down notices) only applies to content posted by third-parties. This would most clearly apply to user-submitted content like Podcasts. So, depending on how Apple has structured its iTunes music distribution, there could be an argument that the DMCA does not technically apply if Apple is the entity directly posting and offering the songs for sale. But once again, the Apple form, and a DMCA take-down notice are relatively simple mechanisms to use as a first option.
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It cannot hurt to send the DMCA take down notice. If that does not work, and you want to proceed, you will need to retain a lawyer to represent you.
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