I think you don't understand the license if you think you can profit off someones work as long as it's not 'public'. It still counts, its just not enforceable in anyway unless someone who receives the miner initiates it. When they talk about 'private work' that means you don't share it with anyone, not you don't share it with anyone publicly. Open licensing mainly refers to profiting off other peoples work though. That still happens even if it's not public, developers with private miners who sell them are already violating the open license, but this obviously isn't their area of forte, the only reason it's come up recently is because people are looking to use it as a excuse.

As I mentioned already, it's pretty easy to include more people with a fee schedule and this is a non-issue as this sort of stuff happens all the time in the mining community. No one is going to sue anyone else, nothing is going to happen, especially if you include all the main parties that created the work... That's mainly where I think people starting to poopoo on this. If DJM doesn't get any bit of the L2V2 fees, even though he developed most of the work for the initial miner. All of that could easily be programmed in, it's just someones address, or it could divy it up on the receiving end of the payments, which would probably be easiest.