OLG Köln hat in seinem Urteil vom 16.05.2012, Az.: 6 U 23 ff./11, CR
2012, 534, zum Einen einen
großen Beitrag zur Aufklärung der Anforderungen an die sog.
sekundäre Darlegungslast hinsichtlich der Täterschaft oder
Teilnahme an einer Urheberrechtsverletzung geleistet. Danach waren
die Anforderungen zur Entlastung des Anschlussinhabers weitaus
weniger streng, wie von den Münchner Gerichten gefordert. Zum
Anderen hat ein Nebensatz der Entscheidung des OLG Köln zu
Spekulation einiger gängiger Abmahnkanzleien geführt, man könne
doch noch eine Beweislastumkehr zum Nachteil des Anschlussinhabers
formulieren. Der 6. Senat des OLG Köln hat in dieser oben zitierten
Entscheidung vom 16.05.2012 in einem Nebensatz sinngemäß
formuliert: „…gegebenenfalls möge der Anschlussinhaber solche
Umstände darlegen und gegebenenfalls
beweisen. Daraus versucht man nun vereinzelt doch noch eine Beweislastumkehr zu zaubern. An dieser Stelle sei festgehalten, dass der BGH ganz klar und ausdrücklich von sekundärer Darlegungslast und nicht Beweislast gesprochen hat, sodass hier schon gar kein Auslegungsspielraum besteht. Wenn aber die Täterschaft widerlegt ist, dann haftet der Anschlussinhaber eben nicht auf Schadensersatz mittels einer Abmahnung Filesharing.
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