The disincentive is having to pay for the thing you pirated. Not to mention attorney fees if you decide to fight the charge.
Case 2: you decide to pirate. You pay 0 with above a 99% chance. If you do get caught, you can pay the minimal retail price over the last year.
What exactly do you see as a disincentive for choosing #2, since case 2 beats case 1 in all cases?
I think that making it harder to come by the infringing content by going after the people who produce it is a better way to fight this problem than going after everyone who wants to use it.