But Elsevier's lawyers would presumably argue during negotiations that the option to have CC0 distribution of text meets this stipulation, whether in spirit or

But Elsevier's lawyers would presumably argue during negotiations that the option to have CC0 distribution of text meets this stipulation, whether in spirit or letter. I would bet that MIT's choice to divorce from Els came from a combination of ideoligical, budget, and reputational concerns (e.g. the UC system divorced from them as well and MIT now stands in solidarity). So I don't think issue was likely to be decisive. I think that if the price had been right, all parties would have found a way to argue that the stated terms had been met -- or to simply not address them.