I think if they hadn’t abandoned the CDL modern during the pandemic, they could have kept it going indefinitely. Even if it wasn’t likely fair use, it might have been. More than that, it would have been bad press for the publisher to make the first move.
Abandoning CDL during the pandemic was just waving a red flag and giving the publishers a slam dunk case.
I think if IA had just held the line with CDL, they could have over time just effectively established a precedent. Lost opportunity.