I thought theft of trade secrets is another way to prosecute?
I'm sure there may be multiple laws at hand, all depending on how the information was obtained. I just see copyright as one certain venue.
You said yourself just leaking things is not fair use. That's what these outlets often do. And Bethesda for example went so far as to stop giving Kotaku any review codes or anything like that, so why would they shy down from suing them if they could?
The answer is because leaking like that isn't illegal.
That's a poor legal argument. Everyone was holding their breath when Nintendo started enforcing copyright on YouTube. Everyone was wondering if they'd take someone to court over let's plays. No one's been taken to court, so there's no legal precedence. Same thing with leaks, I'm guessing. Let's plays may be fair use, they may not. Same with these leaks. I'm not saying it's illegal, I'm saying this pertains to copyright. It is copyright infringement. The question is if it is fair use.
Game news outlets aside, I've never seen a major publication openly leak things from entertainment in any way. There is, of course, a possibility to claim it's public knowledge once it's been spread far and wide. Being the source for a leak puts you in a different position, anyway. Doing so with providing no commentary is even worse. I'm guessing at least Kotaku articles provide commentary in some way, so that gives a better case if it were ever to go to trial.
What I'm saying is that Nintendo would be able to establish a
prima facie case against this leaker, so I see it as a viable venue to go to court over. I'd follow the case closely, because it'd be really interesting to see the court's interpretation of such a case. I'm not saying it's illegal. I understand that it may be understood that way when I explain how copyright works, in the fact that Fair Use is an affirmative defense. It is once you've been found to breach copyright that you can defend against it as fair use. So it is copyright infringement, but it may not be illegal.