Whatever the merits of your sugggestion, verifying that a company was "actually and actively be trying to make money" would be wide open to abuse and practically speaking, impossible.
This could be easily solved, if the burden of proof was on the company itself... when they report/sue you for copyright infringement, they'd just have to prove, that it's reasonably simple for the person to obtain the material legally (so, is there a (eg nintendo) distributer in the country of the accused, is there a store that sells those games there, is it possible to buy it online, etc.). If there are no reasonable legal ways to obtain the material, then you cannot claim lost profit and the "pirate" cannot get fined/sued for infringement.
That simply ruins the copyright system for everyone that isn't making money. Which is pretty bad given that copyright is also what stops people from say, simply stealing someone's art drawn and shared as a hobby or even drawn and shared as part of a portfolio (and thus indirectly being a potential source of profit for them).
Seems unlikely that it’s a particularly hard problem to solve, given that trademark law works in a similar way, where if you stop actively using the mark in the market, you can lose it.
But if someone takes your land, you lose it. If someone looks at a bootleg photo of your land you still have your land, if you ever choose to monetize it again.