iTunes TV shows and iCraveTV

Jonathan Zittrain, who nowadays is spending half his time in the US and half in the UK, is a happy Slingbox user and he's been buying TV shows from iTunes. But he wonders how come iTunes are not falling foul of the iCrave TV ruling.

"I'm in the UK much of the year, and have found the Slingbox to be a great way of watching my home TiVo from anywhere. Additionally, just recently the iTunes store started offering a limited number of TV shows for download. $1.99 for an episode of The Office or Battlestar Galactica works well -- high quality, no commercials, and can be watched without the broadband connection required by Sling.

I tried a few episodes that way, liked it, and then was bemused when I couldn't find the TV shows anywhere on the iTunes Music Store site that's viewed within iTunes. It was as if the project had been quietly canceled -- no link anywhere to the shows I knew had been there a few days before. I finally figured it out: the Store was doing an IP address geolocation, and finding me in the UK, offered me the UK store -- which has no TV. I presume that that's because Apple hasn't cleared the rights for worldwide distribution of these shows -- only US distribution. (I'd be interested if anyone knew for sure.)

I saw a very small dropdown box at the bottom of the UK store that let me select US, and a new page appeared, with the TV shows on the menu again. (In fact, the dropdown box then disappeared, so choosing the US view of the iTunes store is a bit like staying at the Hotel California.)

I was then able to download the shows here in the UK. I'm delighted at this, of course -- but I'm curious how Apple gets around the problem suffered by iCraveTV when it wanted to rebroadcast over-the-air TV onto the Internet -- an activity illegal in the US and, they were prepared to argue, legal in Canada, where the site was hosted. They first used user-provided area codes to determine whether someone was in the US, denying access to those who provided US codes. They then attempted other means to filter -- though an expert for the plaintiffs concluded that a "substantial" number of hits were still coming from within the US. Certainly whatever efforts they made were did not dissaude the federal judge hearing the request by broadcasters from issuing a restraining order shutting down iCraveTV. In any case, Apple is (happily for me) allowing people outside the US to access the US music store by simply finding that dropdown box.

So is Apple in better stead than iCraveTV because (1) the broadcasters aren't upset about leakage outside the US, and in fact still profit from it since "leaked" shows are still paid for; (2) Apple actually has the overseas rights but doesn't offer the shows on its non-US versions of the store for other reasons; (3) Apple has a US credit card on file for me (which doesn't actually seem relevant to the legal analysis if indeed Apple doesn't have the right to ship the content overseas); (4) ... ?"