Sorry, I was mostly replying to the "which is what some people in the industry are saying". I've seen plenty of arguments that Kickstarter doesn't entitle you to the product, not many that preorders don't entitle you to at least a refund.
Unless the preorder is explicitly marked as a "sponsor development to get the game", which does have an implicit (though really should be explicit) "if development fails you don't get he game" so does put it in the same kind of camp as Kickstarter.
I think in the UK at least you're legally entitled to cancel and get back your money, but not sure about the USA since that doesn't have as strong consumer protections.
If I am not mistaken and they changed it, this is ruling on kickstarter:
"If a creator is unable to complete their project and fulfill rewards, they’ve failed to live up to the basic obligations of this agreement. To right this, they must make every reasonable effort to find another way of bringing the project to the best possible conclusion for backers. A creator in this position has only remedied the situation and met their obligations to backers if:
they post an update that explains what work has been done, how funds were used, and what prevents them from finishing the project as planned;
they work diligently and in good faith to bring the project to the best possible conclusion in a timeframe that’s communicated to backers;
they’re able to demonstrate that they’ve used funds appropriately and made every reasonable effort to complete the project as promised;
they’ve been honest, and have made no material misrepresentations in their communication to backers; and
they offer to return any remaining funds to backers who have not received their reward (in proportion to the amounts pledged), or else explain how those funds will be used to complete the project in some alternate form. "
I think Josh pretty much violated the fourth point (honesty) as far as is humanly possible when he put out the fake hardcoded video and didn´t exactly honor the rest either as far as we can tell.