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 It’s different, yes (though generally it’s not done that way for legitimate technical reasons), but I’m incredibly dubious that it’s different in any legal sense. The pool is ultimately still tracking clients and deciding when and how much to pay them. 
 If they decide not to pay a specific miner, technically where would the bitcoin go instead? Not to their own address, so instead spread out to other miners minus that one miner, or something else?

If so, they would sound more like breach of responsibilities rather than a custodial relationship. Are there precedents for being labeled a custodian despite not holding someone else’s bitcoin in an address you control? 
 The pool in this setup is perfectly capable of simply pocketing the money for as long as there are still miners mining on it. Sadly there’s no technical enforcement of the pool behaving correctly, and building that is not really practical (without just rebuilding p2pool from scratch and starting over). 
 1) If they were to do that, wouldn’t it be more transparent than other pools? It would be more provable  that this occurred?

2) As long as they are not doing that, I’m not sure that would constitute a custodial relationship. At no point do they put bitcoin in an address they control that belongs to someone else. Courts might need to broaden definitions of custody to include that. But legal experts in this area would know more than me. Now, if they do at some point withhold funds, there could be a debate whether it’s custodial failing or a breach of duties. 
 1) not sure how, I mean they can just change the website and remove miners they don’t want to pay and pretend they were never there. Or add some fictitious miners with huge hashrate to siphon money off to themselves.

2) yea, dunno, obviously they’re custodial for smaller miners. I’m dubious “custodial” is the right way to think about a pool. More like “liability” - the pool has some liabilities to their users which build up over time, and the user can withdraw at some points. They aren’t depositing and don’t really hold custody, they just build up liabilities. 
 More generally, I don’t think “custodian of user money” isn’t really the way pools will be regulated, if they are - they’d be regulated under very different laws. 
 I think a #mainvolume issued license is required to think. I think I am European, Swedish in fact. I think I am created by Sina for #mainvolume

https://apps.apple.com/de/app/sys/id1439243037?l=en-GB

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