If you want to talk about the current state of Touhou-related stuff's distribution, here's what little I know:
1. I believe all of ZUN's statements on copyright issues have been sloppily written, with significant gray zones and often needlessly convoluted structures. However the current English translation of the 2011 guideline has added to the Western fandom's confusion due to a translation choice. When the word 企業 "enterprise; company" appears in an attributive clause, the translator always rendered it as "commercial" rather than a more accurate word such as "corporate". The definition of what's "commercial" can be extremely fuzzy, but whether a group is a corporation is a clear delineation. (If ZUN & co. truly want to be rigorous, they should have used the word 法人 "legal person", and account for cases such as when a registered not-for-profit organization wants to use Touhou materials. But like I said, sloppy writing.)
It took me many rereads to figure out what the guideline's actually saying, but:
The original intent of the guideline that's been lost in the translation (not that it's been apparent to begin with), is to draw a line between informal groups and companies. Doujin groups are free to create fan works without notifying Shanghai Alice, but they also must stay within boundaries of the doujin rules. Companies are not bound by the rules, but must always negotiate with Shanghai Alice to obtain their permission.
This is why Touhou figures can be distributed to, say, a toy store in Hong Kong, or why Touhou fan music can be heard in karaoke and arcade rhythm games around Japan. When companies are involved, their individually negotiated conditions apply, rather than the rules, which are intended for non-corporate groups only.
I don't know whether companies need to pay ZUN any license fee or royalty for these merchandises, but they obviously must pay something to the authors of fanart or fan music they use. (Those laptops with Touhou stickers and wallpapers still look rather lucrative for the company.)
Also: in reality, it can be argued the way ZUN puts a leash on the over-exploitation and exposure of Touhou is primarily through those company conditions, not the doujin rules. After all, how much marketing budget does a doujin circle have, compared to the media giant Kadokawa?
2. It seems Kinokuniya does have a permission to sell official Touhou games and fan works overseas. I've heard about agents who negotiate doujinshi deals for them.
3. It goes without saying, you can sell digital downloads through your own homepage or doujin-specialty stores: Toranoana, Melonbooks, DLSite, etc. Very recently, the Japanese side of Playism - the only digital portal with an official Touhou game so far - has started selling the action RPG Touhou Koukishin. On twitter, they call it an experiment.
Indeed, based on this principle, donationware should be allowed; international game download portals like Steam are definitely not. N-Forza has pointed out many fan musicians selling Touhou remixes on Bandcamp. I consider this a gray zone, an outside case not imagined by the 2011 guideline.
4. The 2011 guideline specifically forbid fan creators from distributing Touhou apps in Android Market or iOS Store. In a 2013
interview, he clarified that you can make smartphone games, but cannot profit from it (free apps, no F2P, no ads).
At present, there are a number of paid Touhou apps that claim to have Shanghai Alice's permission, and presumably fall under the corporate merchandise category. I think I've seen screenshots of ad-supported Touhou fan games on Android...
5. People on the internet would sometimes post sightings of Touhou character ripoffs on everyday stuff sold in convenient stores. Even ZUN had tweeted about them. This kind of thing is unavoidable.
6. My takeaway is, under the current guideline, it is theoretically possible to set up a download portal for Touhou fan works for foreign markets, since it wouldn't be functionally different from the English version of DLSite. If necessary, negotiating a Shanghai Alice permission similar to DLSite should be infinitely easier than becoming an official publisher of Touhou games like Playism did.
Whether that theoretical case is financially viable is another matter. Oh and the whole point of the "no foreigners" rule is to keep all legal issues within Japan, and aovid the entanglement of foreign copyright laws, so the website must be incorporated in Japan lol.
