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It doesn't matter if it is a third party or not. I don't think most people would make the assumption that iTunes is sending data back to someone else's computer about what tracks you're playing.
I have not given Apple permission to gather data on my listening habits. My buying habits - yes, IF I buy from ITMS. But not my listening habits, AND I HAVE NEVER BEEN ASKED IF I WANT TO OR NOT.
PR nightmares are about perceptions, not facts. The perception here is not a good one, and given Apple's dominance of the legal download market this makes them a bigger target for litigious-happy lawyers be they government or private.
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