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I mean, pre-ordering enables the pre-loading feature, so you can't really have one without the other.
Even if Nintendo were to simply call it "pre-load" you'll still run into the issue of not being able to cancel it.
I don't think every pre-orderable game has pre-loading available, but most of them do. It should be a simple cancellation / deletion process on Nintendo's part, and the fact that they don't is honestly quite dumb, and I agree that they will likely lose this case.