That said, he should be fired for reasons that have nothing to do with copyright. It is an obnoxious attempt to avoid accountability.
IANAL, but I think this would be a tenuous claim. If I see you with a camera and do something while you are pointing the camera at me -- with the express stated intent of having you film me doing it, no less -- I don't think I would get to (credibly) claim "hey, not my responsibility, I just happened to be doing that thing and you happened to catch me doing it on camera."
The normal way you play music is for your own enjoyment. It's incidental if other people overhear. He said that wasn't what he did.
He's not making a public production or broadcasting either - the person doing the filming is doing that.
I would expect most judges to take a very dim view of that argument.
Youtube's algorithms, however, will do what they're written to do...
It would be 'dim' for a claimant to suggest that the cop is participating in some kind of attempt to break copyright.
Rather, more obviously, the person doing the filming in public, without anyone's permission or awareness, just as any other filmmaker/documentarian, is unambiguously a party to some kind of production that ultimately may or may not violate copyright law.
Moreover, the interpretation of the statute, as indicated by a very long trail of case law history indicates that the boundaries for 'pubic performance' are fairly wide, at least wider than the most narrow interpretation of 'for oneself and close family' etc..
The only thing it is doing is creating a false positive in YouTube's copyright protection algorithm.
But yeah, YouTube's policies and mechanisms don't care about the fine points of law.
https://en.wikipedia.org/wiki/Fair_use#3._Amount_and_substan...
Basically, the record company would have to make the case that because this cop played the song, they are losing sales because I guess people are listening to this instead. And not on YouTube, in person, because the person posting it on YouTube would be the one responsible for that. These arguments are utterly absurd.
