Nintendo says users voluntarily paid prices, have no right to tariff refunds

That's not immediately cut and dry. Piracy is virtually required for any sense of proper preservation, because the major way to preserve games is to pirate them while they are still being commercially exploited. If you wait until a game is no longer available for legitimate purchase, then it becomes an order of magnitude harder to preserve unless you contact someone who has a hackable system and also legitimately licensed the content through the platform marketplace.

There's a reason the most pirated platforms over the years are also the best preserved. Such piracy has also even preserved pre-release versions of software at times, see the 16-bit console warez scene and the fact that "first releases" were more important than final versions, until the final versions were released. The original pirates may not have personally given a shit about preservation, but there are several prototypes that only exist today because a pirate group wanted a "first release" and had a contact that had access to ROM images before the game was done. More than one Sonic Megadrive prototype exists because the warez scene spread it and it got rediscovered twenty years later. Same thing for several early builds of Windows over the years.

Piracy is preservation. And it is never stealing. Criminal cases regarding piracy never include any statutes related to "theft". Piracy is copyright infringement, not stealing.