IDG News Service reports (via MacWorld) that AT&T (NYSE: T), in particular, has been sued by the American Society of Composers, Authors and Publishers, asserting that ringtones qualify “as a public performance under the Copyright Act.” The group wants mobile operators to pay royalties, not individual consumers.

The fight is playing out in U.S. District Court for the Southern District of New York. In the operator’s defense the Electronic Frontier Foundation, joined by The Center for Democracy and Technology and Public Knowledge, argued that copyright law exempts performances that are conducted without a commercial purpose, such as ringtones in a restaurant. The EFF said in a blog post: “These wrongheaded legal claims cast a shadow over innovators who are building gadgets that help consumers get the most from their copyright privileges.” The ASCAP said ringtones don’t fall under the exemption because these so-called “performances” can still infringe even if there is no commercial gain.

Possibly, this argument may have had more support back when ringtones were in their heyday, but now with decreasing interest, it seems artists would be happy enough to have someone purchase a ringtone, let alone play it in public since it can be considered publicity for an upcoming album.