There's a problem with this: What if the work is 'available', but only for an outrageous fee? It wouldn't even be that hard to make a legal argument that a $10

There's a problem with this: What if the work is 'available', but only for an outrageous fee? It wouldn't even be that hard to make a legal argument that a $100,000 fee for a single copy is 'justified', since some people have been willing to pay that much for copies of mass-market media (on the secondary market) in the past. Or distribute them via a group-buy system, saying it's only available via commercially pressed BDs, so it's not worth spinning up the presses again unless 2000 people commit to buying a copy in a given timeframe (and then still charging something like $200 per copy with some nonsense about it being a 'premium' edition), delivery then takes 50 weeks. Niche commercial software (industrial control, telecoms, that sort of thing) can costs millions for a copy, so maybe you could 'genuinely' believe that your game's server code costs a million dollars per unit, even for non-commercial use. Now, all these arguments are pretty poor, and wouldn't stand much chance of winning in court, but the fact that there's a bunch of arguments that could be made makes stalling a lawsuit out until the defendants run out of money a much more dangerous possibility.