What is communal is the protection provided by the state. When the state has to protect houses, it’s an easy job, very deterministic, and costs are known. But states routinely refuse to protect large sums of money and require that you acquire your own protection. Something which is too costly for the commons or to vague to determine will be excluded from public protection. Protecting ideas is excluded for example, because they spread so fast that it is practically impossible to protect. I’m of the opinion that bytes are too costly/too vague to be protected by the state, and today is a good example since we had to use all courts up to the Supreme Court to rule on what sounds like a frivolous detail to most of the people. Ruling on whether an API is copyrightable is maybe a sign that the state attempts to protect too much and therefore can’t even distinguish between “too much” and “beyond” its scope.